SUMMARY: The Occupational Safety and Health Administration
(OSHA) is revising its rule addressing the recording and reporting of
occupational injuries and illnesses (29 CFR parts 1904 and 1952), including
the forms employers use to record those injuries and illnesses. The
revisions to the final rule will produce more useful injury and illness
records, collect better information about the incidence of occupational
injuries and illnesses on a national basis, promote improved employee
awareness and involvement in the recording and reporting of job-related
injuries and illnesses, simplify the injury and illness recordkeeping
system for employers, and permit increased use of computers and
telecommunications technology for OSHA recordkeeping purposes.

This rulemaking completes a larger overall effort to revise Part 1904 of
Title 29 of the Code of Federal Regulations. Two sections of Part 1904 have
already been revised in earlier rulemakings. A rule titled Reporting
fatalities and multiple hospitalization incidents to OSHA, became effective
May 2, 1994 and has been incorporated into this final rule as § 1904.39.
A second rule entitled Annual OSHA injury and illness survey of ten or more
employers became effective on March 13, 1997 and has been incorporated into
this final rule as § 1904.41.

The final rule being published today also revises 29 CFR 1952.4, Injury
and Illness Recording and Reporting Requirements, which prescribes the
recordkeeping and reporting requirements for States that have an
occupational safety and health program approved by OSHA under § 18 of
the Occupational Safety and Health Act (the "Act" or "OSH Act").

The following is a table of contents for this preamble. The regulatory
text and appendices follow the preamble. Documents and testimony submitted
to the docket (Docket R-02) of this rulemaking are cited throughout this
preamble by the number that has been assigned to each such docket entry,
preceded by the abbreviation "Ex.," for exhibit.

II. The Occupational Safety and Health Act and the Functions of the
Recordkeeping System

II. The Occupational Safety and Health Act and the Functions of the
Recordkeeping System

Statutory Background

The Occupational Safety and Health Act (the "OSH Act" or "Act") requires
the Secretary of Labor to adopt regulations pertaining to two areas of
recordkeeping. First, section 8(c)(2) of the Act requires the Secretary to
issue regulations requiring employers to "maintain accurate records of, and
to make periodic reports on, work-related deaths, injuries and illnesses
other than minor injuries requiring only first aid treatment and which do
not involve medical treatment, loss of consciousness, restriction of work
or motion, or transfer to another job." Section 8(c)(1) of the Act also
authorizes the Secretary of Labor to develop regulations requiring
employers to keep and maintain records regarding the causes and prevention
of occupational injuries and illnesses. Section (2)(b)(12) of the Act
states Congress' findings with regard to achieving the goals of the Act and
specifically notes that appropriate reporting procedures will help achieve
the objectives of the Act.

Second, section 24(a) of the Act requires the Secretary to develop and
maintain an effective program of collection, compilation, and analysis of
occupational safety and health statistics. This section also directs the
Secretary to "compile accurate statistics on work injuries and illnesses
which shall include all disabling, serious, or significant injuries and
illnesses, whether or not involving loss of time from work, other than
minor injuries requiring only first aid treatment and which do not involve
medical treatment, loss of consciousness, restriction of work or motion, or
transfer to another job."

After passage of the Act, OSHA issued the required occupational injury
and illness recording and reporting regulations as 29 CFR part 1904. Since
1971, OSHA and the Bureau of Labor Statistics (BLS) have operated the
injury and illness recordkeeping system as a cooperative effort. Under a
Memorandum of Understanding dated July 11, 1990 (Ex. 6), BLS is now
responsible for conducting the nationwide statistical compilation of
occupational illnesses and injuries (called the Annual Survey of
Occupational Injuries and Illnesses), while OSHA administers the regulatory
components of the recordkeeping system.

Functions of the Recordkeeping System

This revision of the Agency's recordkeeping rule is firmly rooted in the
statutory requirements of the OSH Act (see the Legal Authority section of
the preamble, below). OSHA's reasons for revising this regulation to better
achieve the goals of the Act are discussed in the following paragraphs.

Occupational injury and illness records have several distinct functions
or uses. One use is to provide information to employers whose employees are
being injured or made ill by hazards in their workplace. The information in
OSHA records makes employers more aware of the kinds of injuries and
illnesses occurring in the workplace and the hazards that cause or
contribute to them. When employers analyze and review the information in
their records, they can identify and correct hazardous workplace conditions
on their own. Injury and illness records are also an essential tool to help
employers manage their company safety and health programs effectively.

Employees who have information about the occupational injuries and
illnesses occurring in their workplace are also better informed about the
hazards they face. They are therefore more likely to follow safe work
practices and to report workplace hazards to their employers. When
employees are aware of workplace hazards and participate in the
identification and control of those hazards, the overall level of safety
and health in the workplace improves.

The records required by the recordkeeping rule are also an important
source of information for OSHA. During the initial stages of an inspection,
an OSHA representative reviews the injury and illness data for the
establishment as an aid to focusing the inspection effort on the safety and
health hazards suggested by the injury and illness records. OSHA also uses
establishment-specific injury and illness information to help target its
intervention efforts on the most dangerous worksites and the worst safety
and health hazards. Injury and illness statistics help OSHA identify the
scope of occupational safety and health problems and decide whether
regulatory intervention, compliance assistance, or other measures are
warranted.

Finally, the injury and illness records required by the OSHA
recordkeeping rule are the source of the BLS-generated national statistics
on workplace injuries and illnesses, as well as on the source, nature, and
type of these injuries and illnesses. To obtain the data to develop
national statistics, the BLS and participating State agencies conduct an
annual survey of employers in almost all sectors of private industry. The
BLS makes the aggregate survey results available both for research purposes
and for public information. The BLS has published occupational safety and
health statistics since 1971. These statistics chart the magnitude and
nature of the occupational injury and illness problem across the country.
Congress, OSHA, and safety and health policy makers in Federal, State and
local governments use the BLS statistics to make decisions concerning
safety and health legislation, programs, and standards. Employers and
employees use them to compare their own injury and illness experience with
the performance of other establishments within their industry and in other
industries.

III. Overview of the Former OSHA Recordkeeping System

The OSH Act authorizes OSHA to require employers to keep records and to
report the recorded information to OSHA. However, the Agency only requires
some employers to create and maintain occupational injury and illness
records. Those employers who are required to keep records must report on
those records only when the government specifically asks for the
information, which occurs exclusively under limited circumstances that are
described below.

Employers covered by the recordkeeping regulations must keep records of
the occupational injuries and illnesses that occur among their employees.
To do so, covered employers must complete two forms. First, the employer
must maintain a summary form (OSHA Form 200, commonly referred to as the
"OSHA Log," or an equivalent form) that lists each injury and illness that
occurred in each establishment during the year. For each case on the Log,
the employer also prepares a supplementary record (OSHA Form 101, or an
equivalent), that provides additional details about the injury or illness.
Most employers use a workers' compensation First Report of Injury in place
of the 101 form. The Log is available to employees, former employees, and
their representatives. A Summary of the Log is posted in the workplace from
February 1 to March 1 of the year following the year to which the records
pertain. The Log and summary, as well as the more detailed supplementary
record, are available to OSHA inspectors who visit the establishment.

The employer is only obligated to record work-related injuries and
illnesses that meet one or more of certain recording criteria. In
accordance with the OSH Act, OSHA does not require employers to record
cases that only involve "minor" injuries or illnesses, i.e., do not involve
death, loss of consciousness, days away from work, restriction of work or
motion, transfer to another job, medical treatment other than first aid, or
diagnosis of a significant injury or illness by a physician or other
licensed health care professional.

The language of the OSH Act also limits the recording requirements to
injuries or illnesses that are "work-related." The Act uses, but does not
define, this term. OSHA has interpreted the Act to mean that injuries and
illnesses are work-related if events or exposures at work either caused or
contributed to the problem. Work-related injuries or illnesses may (1)
occur at the employer's premises, or (2) occur off the employer's premises
when the employee was engaged in a work activity or was present as a
condition of employment. Certain limited exceptions to this overriding
geographic presumption were permitted by the former rule.

Although the Act gives OSHA the authority to require all employers
covered by the OSH Act to keep records, two major classes of employers are
not currently required regularly to keep records of the injuries and
illnesses of their employees: employers with no more than 10 employees at
any time during the previous calendar year, and employers in certain
industries in the retail and service sectors.

Although the Act authorizes OSHA to require employers to submit reports
on any or all injuries and illnesses occurring to their employees, there
are currently only three situations where OSHA requires an employer to
report occupational injury and illness records to the government. First, an
employer must report to OSHA within eight hours any case involving a work-related
fatality or the in-patient hospitalization of three or more employees as
the result of a work-related incident (former 29 CFR 1904.8, final rule
1904.39). These provisions were revised in 1994 to reduce the reporting
time for these incidents from 48 hours to 8 hours and reduce the number of
hospitalized employees triggering a report from five workers to three
workers (59 FR 15594 (April 1, 1994)). Changes made to this section in
1994 have largely been carried forward in the final rule being published
today.

Second, an employer who receives an annual survey form from the Bureau
of Labor Statistics must submit its annual injury and illness data to the
BLS. The BLS conducts an annual survey of occupational injuries and
illnesses under 29 CFR 1904.20-22 of the former rule (1904.41 of the final
rule). Using a stratified sample, the BLS sends survey forms to randomly
selected employers, including employers who, under Part 1904, would
otherwise be exempt from the duty to keep the OSHA Log and Summary. These
otherwise exempt employers are required to keep an annual record of the
injuries and illnesses occurring among their employees that are recordable
under Part 1904 if the BLS contacts them as part of the annual survey. At
the end of the year, these employers must send the results of recordkeeping
to the BLS. The BLS then tabulates the data and uses them to prepare
national statistics on occupational injuries and illnesses. The BLS survey
thus ensures that the injury and illness experience of employers otherwise
exempted from the requirement to keep OSHA records -- such as employers
with 10 or fewer employees in the previous year and employers in certain
Standard Industrial Classification (SIC) codes -- is reflected in the
national statistics. In accordance with its statistical confidentiality
policy, the BLS does not make public the identities of individual
employers.

Finally, OSHA may require employers to send occupational injury and
illness data directly to OSHA under a regulation issued in 1997. That
section of this regulation is entitled Annual OSHA Injury and Illness
Survey of Ten or More Employers. It allows OSHA or the National Institute
for Occupational Safety and Health (NIOSH) to collect data directly from
employers. This section was published in the Federal Register on
February 11, 1997 (62 FR 6434) and became effective on March 13, 1997. It
has been included in this final rule as section 1904.41 without substantive
change; however, this section has been rewritten in plain language for
consistency with the remainder of Part 1904.

IV. OSHA's Reasons for Revising the Recordkeeping Rule

OSHA had several interrelated reasons for revising its recordkeeping
rule. The overarching goal of this rulemaking has been to improve the
quality of workplace injury and illness records. The records have several
important purposes, and higher quality records will better serve those
purposes. OSHA also believes that an improved recordkeeping system will
raise employer awareness of workplace hazards and help employers and
employees use and analyze these records more effectively. In revising its
recordkeeping rule, the Agency also hopes to reduce underreporting and to
remove obstacles to complete and accurate reporting by employers and
employees.

A major goal of the revision has been to make the system simpler and
easier to use and understand and to update the data on which the system is
based. For example, OSHA has updated the list of partially exempt
industries to reflect the most recent data available. The revisions to the
final rule will also create more consistent statistics from employer to
employer. Further, by providing more details about the system in the
regulation itself and writing the rule in plain language, fewer
unintentional errors will be made and the records will be more consistent.
More consistent records will improve the quality of analyses comparing the
injury and illness experience of establishments and companies with industry
and national averages and of analyses looking for trends over several
years.

Another objective of the rulemaking has been to lessen the recordkeeping
burden on employers, reduce unnecessary paperwork, and enhance the cost-effectiveness
of the rule. The final rule achieves this objective in several ways. It
updates the partially exempt industry list, reduces the requirement to keep
track of lengthy employee absences and work restrictions caused by work-
related injuries and illnesses and, above all, greatly simplifies the
forms, regulatory requirements, and instructions to make the system easier
for employers and employees to manage and use.

In this rulemaking, OSHA has also addressed some of the objections
employers have raised in the years since OSHA first implemented the injury
and illness recordkeeping system. For example, the final rule includes a
number of changes that will allow employers to exclude certain cases,
eliminate the recording of minor illness cases, and allow employers maximum
flexibility to use computer equipment to meet their OSHA recordkeeping
obligations.

OSHA is also complying with the President's Executive Memorandum on
plain language (issued June 1, 1998) by writing the rule's requirements in
plain language and using the question-and-answer format to speak directly
to the user. OSHA believes that employers, employees and others who compile
and maintain OSHA records will find that the plain language of the final
rule helps compliance and understanding.

Many of OSHA's goals and objectives in developing this final rule work
together and reinforce each other. For example, writing the regulation in
plain language makes the rule easier for employers and employees to use and
improves the quality of the records by reducing the number of errors caused
by ambiguity. In some cases, however, one objective had to be balanced
against another. For example, the enhanced certification requirements in
the final rule will improve the quality of the records, but they also
slightly increase employer burden. Nevertheless, OSHA is confident that the
final rule generally achieves the Agency's goals and objectives for this
rulemaking and will result in a substantially strengthened and simplified
recordkeeping and reporting system.

The Need To Improve the Quality of the Records

The quality of the records OSHA requires employers to keep is of crucial
importance for anyone who uses the resulting data. Problems with
completeness, accuracy, or consistency can compromise the data and reduce
the quality of the decisions made on the basis of those data. Several
government studies, as well as OSHA's own enforcement history, have
revealed problems with employers' injury and illness recordkeeping
practices and with the validity of the data based on those records.

A study conducted by the National Institute for Occupational Safety and
Health (NIOSH) between 1981 and 1983 revealed that 25 percent of the 4,185
employers surveyed did not keep OSHA injury and illness records at all,
although they were required by regulation to do so (Ex. 15:407-P).

A study of 192 employers in Massachusetts and Missouri conducted by the
BLS in 1987 reported that an estimated 10 percent of covered employers did
not maintain OSHA records at all, total injuries were underrecorded by
approximately 10 percent (even though both overrecording and underrecording
were discovered), lost workday injuries were undercounted by 25 percent,
and lost workdays were undercounted by nearly 25 percent. Approximately
half of the uncounted lost workdays were days of restricted work activity,
and the other half were days away from work. Some of the underrecording was
due to employers entering lost time cases on their records as no-lost-time
cases (Exs. 72-1, 72-2).

Through its inspections of workplaces, OSHA has also discovered that
some employers seriously underrecord injuries and illnesses. In cases where
the inspector has found evidence that the employer willfully understated
the establishment's injury and illness experience, OSHA has levied large
penalties and fines under its special citation policy for egregious
violations. OSHA has issued 48 egregious injury and illness recordkeeping
citations since 1986 (Ex. 74).

As part of the OSHA Data Initiative (ODI), a survey allowing OSHA
to collect injury and illness data from employers to direct OSHA's
program activities, the Agency conducts Part 1904 records audits of 250
establishments each year. The following table shows the results of the
audits conducted to date.

1996 Through 1998 OSHA Recordkeeping Audit Results *

Error type

Data reference year(percent)

1996

1997

1998

Cases not entered on employers Log

13.56

10.49

12.91

Lost workday cases recorded as non-lost workday cases

8.39

6.53

6.21

Non-lost workday cases recorded as lost workday cases

(**)

2.10

1.94

Total major recording errors

21.95

19.11

21.07

Total cases recorded without major errors

78.05

80.89

78.93

* The results were tabulated using unweighted data and should not be used to draw broad conclusions about the recordkeeping universe.
** Data not calculated for 1996.
Source: OSHA Data Initiative Collection Quality Control: Analysis of Audits on 1996-1998 Employer Injury and Illness Recordkeeping.

Explicit Rules Are Needed To Ensure Consistent Recording

When OSHA's recordkeeping regulation was first promulgated in 1971,
many industry safety experts were concerned that the regulations and
the instructions on the forms did not provide adequate guidance for
employers. They requested that the Department of Labor provide
additional instructions on employers' recordkeeping obligations and
clarify several recordkeeping issues. The BLS responded in 1972 by
publishing supplemental instructions to the recordkeeping forms, BLS
Report 412, What Every Employer Needs To Know About OSHA Recordkeeping
(Ex. 1). These supplemental instructions were designed to help
employers by providing detailed information on when and how to record
injury and illness cases on the recordkeeping forms. The supplemental
instructions clarified numerous aspects of the rule, including the
important recordability criteria that outline which injuries and
illnesses are work-related and thus recordable. This BLS Report was
revised and reissued in 1973, 1975, and 1978.

In response to requests from labor and industry, and after
publication in the Federal Register and a public comment period, the
BLS 412 report series was replaced in April of 1986 by the
Recordkeeping Guidelines For Occupational Injuries And Illnesses (the
Guidelines) (Ex. 2). The Guidelines contained an expanded question-and-answer format similar to that of the BLS 412 report and provided
additional information on the legal basis for the requirements for
recordkeeping under Part 1904. The Guidelines provided clearer
definitions of the types of cases to be recorded and discussed employer
recordkeeping obligations in greater detail. The Guidelines also
introduced a number of exceptions to the general geographic presumption
that injuries and illnesses that occurred "on-premises" were work-related to cover situations where the application of the geographic
presumption was considered inappropriate. Further, the Guidelines
updated the lists that distinguished medical treatment from first aid
and addressed new recordkeeping issues. The BLS also published a
shortened version of the Guidelines, entitled A Brief Guide to
Recordkeeping Requirements for Occupational Injuries and Illnesses (Ex.
7).

Although the 1986 edition of the Guidelines clarified many aspects
of the recordkeeping regulation, concerns persisted about the quality
and utility of the injury and illness data. In response to inquiries
from employers, unions, employees, BLS, and OSHA staff, the Agency
issued many letters of interpretation. These letters restated the
former rule's regulatory requirements, interpreted the rules as they
applied to specific injury and illness cases, and clarified the
application of those requirements. A number of these letters of
interpretation have been compiled and entered into the docket of this
rulemaking (Ex. 70). OSHA has incorporated many of the prior
interpretations directly into the implementation questions and answers
in the regulatory text of the final rule, so that all affected
employers will be aware of these provisions.

External Critiques of the Former Recordkeeping System

Because of concern about the injury and illness records and the
statistics derived from them, several organizations outside OSHA have
studied the recordkeeping system. The National Research Council (NRC),
the Keystone Center, and the General Accounting Office (GAO) each
published reports that evaluated the recordkeeping system and made
recommendations for improvements. OSHA has relied on these studies
extensively in developing this final rule.

The NRC Report

In response to concern over the underreporting of occupational
injuries and illnesses and inconsistencies in the national data
collected by the BLS, Congress appropriated funds in 1984 for the BLS
to conduct a quality assurance study of its Annual Survey of
Occupational Injuries and Illnesses. The BLS asked the National
Research Council (NRC) to convene an expert panel to analyze the
validity of employer records and the BLS annual survey, to address any
problems related to determining and reporting occupational diseases,
and to consider other issues related to the collection and use of data
on health and safety in the workplace.

In 1987, NRC issued its report, Counting Injuries and Illnesses in
the Workplace: Proposals for a Better System (Ex. 4). The report
contained 24 specific recommendations (Ex. 4, Ch. 8). In sum, the NRC
panel recommended that BLS take the following steps to improve the
recordkeeping system: (1) Modify the BLS Annual Survey to provide more
information about the injuries and illnesses recorded; (2) discontinue
the Supplementary Data System, replace it with a grant program for
States and individual researchers, and develop criteria for the detail
and quality of the data collected by the replacement system; (3)
conduct an ongoing quality assurance program for the Annual Survey to
identify underreporting by comparing the information on employers' logs
with data from independent sources; (4) implement a system of
surveillance for occupational disease, including the collection of data
on exposure to workplace hazards; (5) improve the collection of
national occupational fatality data; (6) implement an administrative
data system that would allow OSHA to obtain individual establishment
data to conduct an "effective program for the prevention of workplace
injuries and illnesses * * *"; and (7) thoroughly evaluate recordkeeping
practices in individual establishments, using additional resources
requested from Congress for that purpose to avoid diverting resources
from OSHA inspections of workplace hazards (Ex. 4, p. 10).

The Keystone Report

In 1987, The Keystone Center convened 46 representatives from labor
unions, corporations, the health professions, government agencies,
Congressional staff, and academia for a year-long dialogue to discuss
occupational injury and illness recordkeeping. Two years later,
Keystone issued its final report, Keystone National Policy Dialogue on
Work-related Illness and Injury Recordkeeping, 1989 (Ex. 5). The report
focused on four major topics: (1) Recordkeeping criteria; (2) OSHA
enforcement procedures; (3) injury and illness data systems; and (4)
occupational illnesses. The Keystone report recommended that: (1) OSHA
and the BLS should revise various aspects of the recording criteria;
(2) OSHA should use injury and illness data to target enforcement
efforts; (3) the BLS should revise the Guidelines to make them easily
and uniformly understood; (4) the BLS should develop a national system
to collect and disseminate occupational injury and illness information;
and (5) OSHA and the BLS should broaden the type of information
collected concerning occupational illness and make the information
available to employees and government agencies for appropriate purposes
such as research and study.

The General Accounting Office (GAO) Study

An August 1990 report by the GAO, Options for Improving Safety and
Health in the Workplace (Ex. 3), discussed the importance of employer
injury and illness records. The GAO noted that these records have
several major uses. They help employers, employees and others
understand the nature and extent of occupational safety and health
problems. They help employers and employees identify safety and health
problems in their workplaces so that they can correct the problems.
They also enable OSHA to conduct research, evaluate programs, allocate
resources, and set and enforce standards. The report focused on the use
of the records in OSHA enforcement, particularly in targeting
industries and worksites for inspections and determining the scope of
inspections.

The GAO report found that there was "possibly significant injury
and illness underrecording and subsequent underreporting" (Ex. 3, p.
3). The GAO report gave three main reasons for inaccurate recording and
reporting: (1) Employers intentionally underrecord injuries and
illnesses in response to OSHA inspection policies or management safety
competitions; (2) employers unintentionally underrecord injuries and
illnesses because they do not understand the recording and reporting
system; and (3) employers record injuries and illnesses inaccurately
because they do not place a high priority on recordkeeping and do not
supervise their recordkeepers properly. The GAO report noted that
OSHA's revised enforcement procedures, which included increasing its
fines for recordkeeping violations and modifying its records-review
procedures, would likely help to improve the accuracy of recordkeeping.
The GAO recommended that the Department of Labor study the accuracy of
employers' records using independent data sources, evaluate how well
employers understand the revised Guidelines, and audit employers'
records in selected enforcement activities.

OSHA's Strategy for Improving the Quality of Records

OSHA has developed a four-part strategy to improve the quality of
the injury and illness records maintained by employers. The first
component is to provide information, outreach and training to employers
to make them more aware of the recordkeeping requirements, thereby
improving their compliance with these requirements. For example,
information on injury and illness recordkeeping is included in many of
OSHA's publications and pamphlets, on the OSHA CD-ROM, and on OSHA's
Internet site. OSHA personnel answer thousands of recordkeeping
questions each year in response to phone calls and letters. OSHA also
trains employers at the OSHA Training Institute in recordkeeping
procedures and provides speakers on this topic for numerous safety and
health events.

The second component is improved enforcement of the recordkeeping
requirements. OSHA continues to review employer records during many of
its workplace inspections. OSHA also audits the records of some
employers who submit data to OSHA under former section 1904.17
(recodified as section 1904.41 Requests from OSHA for Data in the final
rule). Although OSHA does not issue citations for minor reporting and
recording violations, the Agency does cite and fine employers when it
encounters serious or willful injury and illness recordkeeping
problems.

The third component of OSHA's overall plan is this revision of the
injury and illness recordkeeping rule. The revised final rule will
streamline the recordkeeping system by simplifying the forms and the
logic used to record an individual case. It will also consolidate the
instructions that were formerly contained in the rule itself, in the
Guidelines, and in many interpretative letters and memoranda. In
addition, the final rule will improve the quality of the injury and
illness records by changing several requirements to ensure that data
are entered correctly. OSHA has simplified and streamlined the
recordkeeping forms and processes to reduce errors. Other changes
include: (1) Simplifying and clarifying the definitions of terms such
as "medical treatment," "first aid," and "restricted work" to
reduce recording errors; (2) providing specific recordkeeping guidance
for specific types of injuries and illnesses; (3) including a detailed
discussion of the process of determining whether an injury or illness
is work-related; (4) giving employees greater involvement by improving
their access to records and providing a longer posting period for the
annual summary; (5) requiring higher level management officials to
certify the records; (6) adding a falsification/penalty statement to
the Summary; (7) adding a disclaimer to the Log to clarify that an
employer who records an injury or illness is not admitting fault,
negligence or liability for workers' compensation or insurance
purposes; and (8) requiring the employer to establish a process for
employees to report injuries and illnesses and to tell employees about
it, and explicitly prohibiting the employer from discriminating against
employees who report injuries and illnesses.

V. The Present Rulemaking

In 1995, the Keystone Center reassembled a group of business,
labor, and government representatives to discuss draft proposed changes
to the recordkeeping rule. OSHA shared its draft proposed revision of
the rule with the participants and the public. The draft was also
reprinted in several national safety and health publications. Written
comments generated by the on-going dialogue were used to help develop
the proposal and the final rule, and they are in the rulemaking record
(Ex. 12).

OSHA consulted with the Advisory Committee on Construction Safety
and Health (ACCSH) before issuing the proposed rule. ACCSH made specific
recommendations to OSHA for improving the recordkeeping system as it
applied to the construction industry. OSHA gave the ACCSH recommendations
careful consideration and responded by modifying the proposal in several
areas. The ACCSH recommendations, OSHA's written briefing, and the
relevant portions of the transcripts of the October and December 1994
ACCSH meetings are also part of the public record (Ex. 10).

OSHA published a Notice of Proposed Rulemaking (NPRM) on February
2, 1996 (61 FR 23), giving formal notice that the Agency proposed to
revise the injury and illness recording and reporting regulations,
forms, and supplemental instructions (Ex. 14). The proposed rule
reflected a number of suggestions made by the Keystone participants and
ACCSH.

The NPRM invited all interested parties to submit comments on the
proposal to the docket by May 2, 1996. In response to requests from
members of the public, OSHA held two public meetings during the comment
period and extended the comment period to July 1, 1996.

OSHA received 449 written comments in response to the NPRM and
compiled 1200 pages of transcripts from 60 presentations made at the
public meeting. Comments and testimony were received from a broad range
of interested parties, including corporations, small business entities,
trade associations, unions, state and local governments, professional
associations, citizens groups, and safety and health organizations.
OSHA has carefully reviewed all of the comments and testimony in its
preparation of the final rule.

As described in greater detail below, the final rule revises OSHA's
regulation for the recording and reporting of work-related deaths,
injuries and illnesses. The rule is part of a comprehensive revision of
the OSHA injury and illness recordkeeping system.

The final rule becomes effective, on January 1, 2002. At that time,
the following recordkeeping actions will occur:

(1) 29 CFR Part 1904, entitled Recording and Reporting Occupational
Injuries and Illnesses, will be in effect.

(2) The State plan provisions in 29 CFR Part 1952, Section 1952.4,
entitled Injury and Illness Recording and Reporting Requirements will
be in effect.

(3) Three new recordkeeping forms will come into use:

(A) OSHA Form 300, OSHA Injury and Illness Log, and OSHA Form 300 A
Summary, which will replace the former OSHA Form 200, Log and Summary
of Occupational Injuries and Illnesses; and

(B) OSHA Form 301, OSHA Injury and Illness Incident Record, which
will replace the former OSHA Form 101, Supplementary Record of
Occupational Injuries and Illnesses.

(4) The following BLS/OSHA publications will be withdrawn:

(A) Recordkeeping Guidelines for Occupational Injuries and
Illnesses, 1986; and

(B) A Brief Guide to Recordkeeping Requirements for Occupational
Injuries and Illnesses, 1986.

(5) All letters of interpretation regarding the former rule's
injury and illness recordkeeping requirements will be withdrawn and
removed from the OSHA CD-ROM and the OSHA Internet site.

Provisions Not Carried Forward From the Proposal

Two proposed regulatory sections in OSHA's 1996 Notice of Proposed
Rulemaking (NPRM) have not been carried forward in this rulemaking.
They are: (1) Falsification of, or failure to keep records or provide
reports (Proposed section 1904.16), and (2) Subcontractor records for
major construction projects (Proposed section 1904.17).

Paragraphs (a) and (b) of proposed section 1904.16, "Falsification
of, or failure to keep records or provide reports," were included in
the proposal because they had been included in the former rule. The
proposed section included a provision stating that employers may be
subject to criminal fines under section 17(g) of the Act for falsifying
injury and illness logs and may be cited and fined under sections 9,
10, and 17 of the Act for failure to comply with the recordkeeping
rule. Several commenters favored retention of this proposed provision
in the final rule because, in their view, OSHA needs strong enforcement
of the recordkeeping rule to make sure that employers keep accurate
records (see, e.g., Exs. 15: 11, 289). Others, however, objected to the
proposed provision (see, e.g., Exs. 15: 22, 335, 375). The views of
this latter group were reflected in a comment from the American
Petroleum Institute (Ex. 15: 375), which urged OSHA to delete this
section from the rule in its entirety because nothing like it is found
in any other OSHA regulation or standard. In the final rule, OSHA has
decided that this section is not needed to enforce the final rule, and
when need be, to issue citations and levy penalties.

The Keystone report recommended, and OSHA proposed, to require
construction employers to maintain "site logs," or comprehensive
injury and illness records, for major construction projects. The
Keystone report noted that construction sites are normally composed of
multiple contractors and subcontractors, each of whom may be present at
the site for a relatively short period of time, and that no records of
the safety and health experience of the site are readily available,
either to OSHA or to employers and employees.

In an attempt to address this problem, the proposed provision would
have required site-controlling employers in the construction industry
to maintain a separate record reflecting the overall injury and illness
experience of employees working for sub-contract construction firms for
any construction site having an initial construction contract value
exceeding $1,000,000. The site-controlling employer would thus have
been required to record the injuries and illnesses of subcontractor
employees who were employed by construction employers with 11 or more
employees working at the site at any time during the previous calendar
year.

Many commenters strongly favored the addition of a construction
site log provision to the final rule (see, e.g., Exs. 20; 29; 35; 36;
45; 15: 48, 110, 113, 129, 136, 137, 141, 181, 224, 266, 278, 310, 350,
359, 369, 375, 394, 407, 413, 415, 418, 425, 438, 440). Several of
these commenters urged OSHA to expand this "multi-employer" log
concept to employers in other industries (see, e.g., Exs. 35; 15: 48,
113, 129, 369, 415, 418, 438). For example, the AFL-CIO (Ex. 15: 418)
encouraged OSHA to "[e]xpand this recommendation to all industries. As
the Agency is well aware, safety and health problems related to multi-employer worksites and contract work are a major concern in many
industries beyond construction. Many of the major chemical explosions
and fatalities at steel mills, power plants and paper mills have been
related to contract work. With more and more businesses contracting out
services for on-site activities, the safety and health concern
associated with these practices is growing."

Other commenters argued that the proposed site log provisions
should be expanded to include injuries and illnesses to construction
employees working for employers who would otherwise be exempt from OSHA
recordkeeping requirements because they employ fewer than 11 workers
(see, e.g., Exs. 20; 15: 350, 359, 369, 407, 425). Two of these
commenters recommended adding a requirement to the final rule requiring
the site-controlling employer to assist smaller employers with their
records (Exs. 15: 350, 359).

Several commenters recommended adding provisions to the final rule
that would provide greater access to the construction site log by
employees (see, e.g., Exs. 15: 129, 310, 394) and by other employers
(see, e.g., Ex. 15: 310). Others recommended that OSHA include in the
final rule a requirement for the site-controlling employer to collect
the number of hours worked by each subcontractor to make it easier to
calculate each subcontractor's injury and illness rates (see, e.g.,
Exs. 15: 310, 369, 394), and some commenters recommended that the final
rule contain a requirement for subcontractors to report work-related
injuries and illnesses to the site-controlling employer (see, e.g.,
Exs. 15: 359, 369, 440).

The Building and Construction Trades Department (BCTD), AFL-CIO
discussed many of these issues while commenting in favor of site logs:

On the project level, the fragmentation of employers on
construction sites makes it impossible to assess fully safety and
health on a particular project. Since the origins of OSHA, injury
and illness recordkeeping has been the responsibility of each
individual employer. Nevertheless, the hazards of construction
activity are shared by employees across the site, and are not
specific to a single employer. Employees are often injured or made
ill by circumstances that are not under their own employer's full
control. The balkanization of recordkeeping contributes to the
failure of full and complete communication in construction.

What is needed, at a national and the project level, is a way to
record and count the injuries and illnesses that occur on specific
projects. We need to know about illnesses and injuries that are
associated with distinct types of construction activity, with the
various phases of construction, and with the methods, materials, and
hazards that are common to those types of work. Furthermore, we need
to develop a measure of injury and illness that spans employers, to
get a picture of the aggregate outcomes affecting all actors on a
common site. Only with such a tool can the construction industry
establish and meet performance benchmarks for safety and health.

Site logs would be useful to all of the actors in the
occupational safety and health arena. First, employers would benefit
from the collection of this data. General contractors increasingly
use safety and health information in selecting their subcontractors,
and in evaluating projects. Site logs will give them a new tool for
both self-evaluation and the evaluation of other contractors.
Similarly, subcontractors are often ignorant of the safety and
health performance of other contractors and the general contractor.
Site logs will lead to better information for all contractors on the
project.

Second, employees will benefit from site logs. The site log will
focus employers' attentions upon the risks and hazards that are
encountered across the worksite. By concretely illustrating that
hazards are everyone's problems, the site log will prompt employers
and employees to minimize those hazards and to maximize site safety
and health.

Third, owners will benefit from site logs. Today, many owners
are selecting contractors on the basis of the contractors' rates for
lost work days and total recordables. In many cases, these rates are
a poor measure for the owner's purpose. An owner's typical concern
is with how well a general contractor manages safety and health on
the entire site, not with how many injuries and illnesses occurred
within that contractor's own workforce. Site logs can be used to
measure the management performance of the general contractor, and
will greatly assist the owners in their quest for construction
safety.

Finally, OSHA will find the site logs to be enormously useful in
its efforts to become a "data-driven" agency. First, a project-centric focus will allow OSHA to focus its enforcement and
consultation resources. Site logs will be useful to OSHA in
scheduling inspections during the phases of construction which
appear, through this data, to present the most risks, and in
focusing its inspections at construction sites, since the recent
illness and injury history of the entire site can be assayed by
examining a single document. By the same token, the information
revealed by the logs will assist OSHA in reaching out to employers
to provide consultative services. Site specific data will also aid
OSHA in developing safety and health standards that are
appropriately tailored to the risks and hazards of specific types of
construction.

The BCTD is convinced that private actors will use site logs to
improve safety and health performance. If OSHA establishes a
requirement that site logs be kept, the private marketplace will use
this new tool to the betterment of employee safety and health (Ex.
15: 394).

[t]he sub-contractor should be responsible for keeping up with their
own employee injury/illness records as they are the ultimate
responsible party for their own employees under worker's
compensation regulations and in all other legal issues. This
proposal would appear to be trying to switch total responsibility to
the site controlling employer for that record keeping purpose and
taking the responsibility off the subcontractor with whom the
responsibility should lie. It is, we feel, unfairly discriminatory
against the site-controlling employer in this case and we are
strongly opposed to the wording of this proposal. Even the
alternative proposal in this section places the ultimate
responsibility upon the project owner for collection of accident and
illness information and send it to OSHA. Again we are strongly
opposed to the wording of this proposal because it takes the
responsibility for record keeping off the sub-contractor and places
the ultimate responsibility on the project owner, a responsibility
that we feel belongs to the sub-contractor irregardless of their
size.

Brown & Root, Inc. (Ex. 15: 423) added "A site controlling
employer cannot be held responsible for determining which injuries and
illnesses of a subcontractor's employees are recordable. A contractor
cannot become involved in the medical records of employees who do not
work for him or her. The subcontractor employer has to be held
accountable and responsible for his own employees, this responsibility
cannot be delegated to another contractor. The number of employees or
the value of the construction project is irrelevant."

Some of the commenters who generally opposed this provision agreed
that site-specific data would be useful if it could be collected by a
method that allowed each employer to keep its own records (see, e.g.,
Exs. 15: 9, 116, 195, 260, 262, 265, 304, 364, 401). Other commenters
pointed out that there would be problems in getting accurate data from
subcontractors (see, e.g., Exs. 15: 242, 263, 269, 270, 310, 314, 377,
395, 397, 406) or suggested that the site-controlling employer should
not be held responsible for the quality of the records received from
subcontractors (see, e.g., Exs. 33; 15: 176, 195, 231, 273, 294, 301,
305, 312, 351).

The Alabama Branch of the Associated General Contractors of
America, Inc. (AGC) cited difficulties associated with other regulatory
requirements that could result from the proposed OSHA site log
requirement:

This could place an undue hardship on the site controlling
employer far beyond his ability to appoint and manage independent
contractors and subcontractors without there being other entangling
both federal and state obligations, which would lead to the
subcontractor's employees being declared employees of the
controlling contractor. Many states use the common law to make a
determination of the employer/employee relationship, as well as the
Internal Revenue Service. This employee/employer relationship under
the common law usually says if a controlling contractor exercises
any control as to time, place, method or result of a person's work
that they are in fact defacto employees of the controlling contractor,
for social security purposes and other state purposes. Therefore, I
think it is shallow thinking to believe that the general contractor
with 100 subcontractors should have all 5,500 employees under their
control and avoid other legal entanglements, without the ability to
actually control the subcontractor.

The National Federation of Independent Business (NFIB) expressed
concern about the proposed site log provision as it would relate to
OSHA's multi-employer citation policy (Ex. 15: 304), and the Small
Business Administration (Exs. 51: 67, 437) argued that the proposed
requirement would require competing employers to share sensitive
business information.

A number of commenters also questioned the value of the statistical
data that would be produced by a site log requirement (see, e.g., Exs.
51; 15: 61, 62, 67, 74, 77, 97, 121, 151, 194, 312, 314, 351, 389, 395,
433, 437, 433), and several participants were concerned that the
records would not be useful for accident prevention purposes (see,
e.g., Exs. 15: 121, 151, 312, 351, 389, 433) .

OSHA received many comments addressing miscellaneous points related
to the proposed construction site log requirement. For example, some
commenters suggested limiting the scope of the project records required
to be maintained (see, e.g., Exs. 15: 17, 21, 111, 116, 213, 155),
while others argued that the proposed dollar threshold ($1 million) for
a covered construction project was too low and should be raised (see,
e.g., Exs. 15: 17, 111, 116, 441). Others suggested that the site log
requirement should be triggered by the time duration of the project
(Ex. 15: 116); the number of construction workers at the site (Ex. 15:
111); or include only construction employers with more than 11
employees (see, e.g., Exs. 15: 170, 213, 405). Some commenters urged
the Agency not to expand the site log concept beyond the construction
industry (see, e.g., Exs. 33; 15: 176, 231, 273, 301, 397). Finally,
several commenters urged OSHA to make any site log provision in the
final rule compatible with the corresponding provisions of the Process
Safety Management Standard (29 CFR 1910.119), especially if the site
log requirement in the recordkeeping rule was expanded beyond
construction (see, e.g., Exs. 33; 15: 159, 176, 231, 273, 301, 335).

Based on a thorough review of the comments received, OSHA has
decided not to include provisions in the final that require the site-controlling employer to keep a site log for all recordable injuries and
illnesses occurring among employees on the site. OSHA has made this
decision for several reasons. First, such a provision would not truly
capture the site's injury and illness experience because many
subcontractors employ 10 or fewer employees and are therefore exempt
from keeping an OSHA Log. To require these very small employers to keep
records under Part 1904 for the periods of time they worked on a
construction site meeting the dollar threshold for this provision would
be a new recordkeeping burden. This would create considerable
complexity for these employers and for the site-controlling employer.
Second, under the Data Initiative (section 1904.41 of the final rule),
OSHA now has a means of targeting data requests for records of the
safety and health experience of categories of employers and can
therefore obtain the data it needs to establish inspection priorities
in a less administratively complex and less burdensome way when the
Agency needs such data. Third, OSHA was concerned with the utility of
the data that would have been collected under the proposed site log
approach, because of the time lag between collection of the data and
its use in selecting employers for inspections or other interventions.
In many cases work at the site would be complete before the data was
collected and analyzed. Finally, a site log requirement is not
necessary to enable general contractors to compare the safety records
of potential subcontractors since they can require such information as
a condition of their contractual arrangements without OSHA
requirements. For these reasons, the final rule does not contain a site
log provision.

Since similar data are readily available from other sources,
such as the National Safety Council, insurance carriers, etc., why
not use these statistics, rather than go through this duplication of
effort at taxpayer expense? Another approach would be to utilize
data collected by OSHA and State Plan compliance officers during
site visits over the past 25 years (Ex. 15: 28).

Several commenters suggested that OSHA use injury and illness data
from the workers' compensation systems in lieu of employer records. The
comments of the American Health Care Association (AHCA) are
representative of the views of these commenters:

AHCA encourages OSHA to consider the use of workers'
compensation data in lieu of proposed OSHA 300 and 301 forms.
Pursuing the enactment of legislation that would allow OSHA access
to every state's workers' compensation data would eliminate the need
for employers to maintain two sets of records, provide OSHA with
necessary safety and health data, and ease administrative and cost
burdens now associated with recordkeeping for employers in every
industry across the country (Ex. 15: 341).

Ms. Diantha M. Goo recommended the use of injury and illness data
obtained from treatment facilities rather than the OSHA records:

The accuracy and usefulness of OSHA's reporting system would be
vastly improved if it were to shift responsibility from employers
(who have a vested interest in concealment) to the emergency rooms
of hospitals and clinics. Hospitals are accustomed to reporting
requirements, use the correct terminology in describing the accident
and its subsequent treatment and are computerized (Ex. 15: 327).

In response to these comments, OSHA notes that the injury and
illness information compiled pursuant to Part 1904 is much more
reliable, consistent and comprehensive than data from any available
alternative data source, including those recommended by commenters.
This is the case because, although some State workers' compensation
programs voluntarily provide injury and illness data to OSHA for
various purposes, others do not. Further, workers' compensation data
vary widely from state to state. Differing state workers' compensation
laws and administrative systems have resulted in large variations in
the content, format, accessibility, and computerization of that system's
data. In addition, workers' compensation databases often do not include
injury and illness data from employers who elect to self-insure.

Additionally, most workers' compensation databases do not include
information on the number of workers employed or the number of hours
worked by employees, which means that injury and illness incidence
rates cannot be computed from the data. Workers' compensation data are
also based on insurance accounts (i.e., filed claims), and not on the
safety and health experience of individual workplaces. As a result, an
individual account often reflects the experience of several corporate
workplaces involved in differing business activities. Finally, as
discussed below in the Legal Authority section of the preamble, the OSH
Act specifically sets out the recordability criteria that must be
included in the OSHA recordkeeping system envisioned by the Congress
when the Act was passed. The Congress intended that all non-minor work-related injuries and illnesses be captured by the OSHA recordkeeping
system, both so that individual establishments could evaluate their
injury and illness experience and so that national statistics
accurately reflecting the magnitude of the problem of occupational
injury and illness would be available.

Although OSHA disagrees that any of the alternate sources of data
are satisfactory substitutes for the information gathered under Part
1904, the Agency recognizes that data from these sources have value. To
the extent that information from workers' compensation programs, the
BLS statistics, insurance companies, trade associations, etc., are
available and appropriate for OSHA's purposes, OSHA intends to continue
to use them to supplement its own data systems and to assess the
quality of its own data. However, consistent with the Congressional
mandate of the OSH Act, OSHA must continue to maintain its own
recordkeeping system and to gather data for this system through
recording and reporting requirements applicable to covered employers.

The requirements of 29 CFR 1952.4 describe the duties of State-Plan
states to implement the 29 CFR 1904 regulations. These requirements are
discussed in Section IX of the preamble, State Plans, and in the
preamble discussion for section 1904.37, State recordkeeping
regulations.

General Issues Raised by Commenters

In addition to the issues discussed above, three issues concerning
recordkeeping warrant discussion: analysis of the data, training and
qualifications of recordkeepers, and recordkeeping software.

Analysis of the Data

During OSHA's public meetings, Eric Frumin of the Union of
Needletrades, Industrial and Textile Employees, AFL-CIO (UNITE) urged
OSHA to include a requirement for employers to analyze the OSHA 1904
data in depth to discover patterns and trends of occupational injury
and illness, stating that:

[y]ou're telling the employers to evaluate information that's coming
to them, and I say that to stress the point that's a very logical,
common sense requirement and you're not generally speaking asking
them to do that once they compile a log. You stop short of asking
employers to evaluate the log in toto, to look for the kinds of
trends and comparisons and so forth that we've been discussing here.
I think it's important for OSHA to consider some -- making such a
requirement, particularly in light of a fairly consistent pattern of
testimony in this proceeding, wherein employers now do not analyze
what's on the log in much depth. * * * But what has emerged at the
end of the day is not a whole lot of use of the information on the
log for -- in terms of analyzing it for trends and various
associations or conclusions about how to protect people, how to stop
the injuries and illness (Ex. 58X, pp. 372 -- 375).

In the final rule, OSHA has not included any requirement for
employers to analyze the data to identify patterns or trends of
occupational injury and illness. OSHA agrees with Mr. Frumin that
analysis of the data is a logical outgrowth of maintaining records.
Employers and employees can use such analyses to identify patterns and
trends in occupational injuries and illnesses, and use that information
to correct safety and health problems in the workplace. OSHA encourages
both employers and employees to use the data for these purposes.
However, a requirement of this type would go beyond the scope of the
recording and reporting rule, which simply requires employers to keep
records of work-related injuries and illnesses, and report the data
under certain circumstances. OSHA believes that requirements of this
type are better addressed through an OSHA standard, rather than the
1904 recordkeeping regulation.

Training of Recordkeepers

The American Federation of Labor and Congress of Industrial
Organizations (AFL-CIO) suggested that OSHA add requirements for the
training of the individual who maintains the 1904 records for the
employer, stating that:

[a]nother important issue relates to the qualifications and
responsibilities of the individual filling out the 300 log and Form
301. Most workplaces generally have a non-safety and health
professional entering this information in the 300 log after the
decision of a recordable injury or illness has been made. In our
view it is important that these individuals have proper training
about the recordkeeping rule and the employer's recordkeeping
system. In order to assure the most accurate and complete recording
of work-related injuries and illnesses, we encourage the Agency to
consider developing guidelines for the qualifications and training
of these individuals (Ex. 15: 418).

OSHA has not included a training requirement for the person
entering the information on the Part 1904 records in this final rule.
The Agency believes that the Section 1904.32 provisions of the final
rule calling for annual review of the records and certification of the
annual summary by a company executive will ensure that employers assign
qualified personnel to maintain the records and to see that they are
trained in that task. Further, because OSHA did not include training
requirements in its 1996 proposal, the Agency has not gathered
sufficient information in the rulemaking docket about whether specific
training provisions would have utility, as well as the appropriate
qualifications and training levels that would assist in writing such
provisions at this time.

As part of its outreach and training program accompanying this
rule, OSHA will be providing speeches and seminars for employers to
help them train their recordkeeping staff. OSHA will also be producing
materials employers can use to help train their recordkeeping staff,
including free software employers can use to keep records, training
programs, presentations, course outlines, and a training video. All of
these materials will be available through OSHA's Internet home page at
www.osha.gov.

OSHA-Produced Recordkeeping Software

In its proposal (61 FR 4048), OSHA asked the public to comment on
whether or not OSHA should develop computer software to make injury and
illness recordkeeping easier for employers, and discussed the features
that would be desirable for such software. Those features were:

-- decision-making logic for determining if an injury or illness is
recordable;

-- automatic form(s) generation;

-- the ability to assist the employer in evaluating the entered data
through several preset analytical tools (e.g., tables, charts, etc.);
and

OSHA also suggested that any such software should be in the public
domain and/or be available at cost to the public and asked the
following questions: What percentage of employers have computers to
assist them in their business? What percentage of employers currently
use computers for tracking employee-related information (payroll,
timekeeping, etc.)? Should the distribution be through the Government,
public domain share-ware distribution, or other channels? Should OSHA
develop the software or only provide specifications for its
requirements?

Several commenters said that most business establishments had
computers (see, e.g., Exs. 15: 9, 95, 163, 281, 288, 375). The American
Health Care Association (AHCA) estimated that 50% to 70% of their
members used computers (Ex. 15: 341), and Raytheon Constructors, Inc.
estimated that 60% of employers are using computers. OSHA agrees that
computers are available in most businesses, although certainly not all
of them. The agency also notes that these comments were made in 1996,
and that businesses' computer usage has grown since that time.

"[e]very feature identified as a minimum requirement would be a
great benefit to employers attempting to comply with the OSHA
recordkeeping requirements. Prompts which would in any way aid in
the determination of recordability would be appreciated by any
person without a great deal of experience in filing OSHA reports. We
feel these features are especially important now with the changes in
forms and information to be collected."

Several of the commenters who urged OSHA to provide computer
software tempered their support by asking that the use of such software
should be optional and not mandatory (see, e.g., Exs. 15: 60, 109, 154,
198, 225, 247, 272, 303, 394), and several other commenters recommended
that OSHA provide both software and specifications so employers could
use the OSHA product to build their own data systems (see, e.g., Exs.
15: 170, 247, 283).

A number of commenters told OSHA that the Agency should not produce
software to help employers with their 1904 recordkeeping obligations
(see, e.g., Exs. 15: 78, 82, 85, 156, 163, 324, 348, 359, 363, 374,
375, 378, 402, 414). Several of these commenters suggested OSHA produce
software performance specifications for the industry (see, e.g., Exs.
15: 156, 163, 357, 387). The commenters had various reasons for
opposing the production of software. Several stated that each employer
wants different data in its own unique form (see, e.g., Exs. 15: 78,
85, 375, 414). For example, the Central Vermont Public Service
Corporation (Ex. 15: 85) stated that "[b]usinesses using safety
related software use programs that can perform OSHA recordkeeping and
workers' compensation functions in one package. It is unlikely that
software developed by OSHA will perform workers' compensation functions
and therefore it will not be well received or utilized by business."
Other commenters stated that OSHA should focus elsewhere, that the
private sector could produce software more economically (see, e.g.,
Exs. 15: 357, 375, 387), and that OSHA software is not needed (see,
e.g., Exs. 15: 363, 378). For example, the Synthetic Organic Chemical
Manufacturers Association, Inc. (SOCMA) stated that "[a]n outside
organization with software development expertise should develop the
software. OSHA's limited resources should go directly toward improving
safety and health in the workplace" (Ex. 15: 357). The Air Transport
Association added: "[m]ost major companies have developed their own
software to support required OSHA recordkeeping, and others have taken
advantage of commercially available programs. We see no need for OSHA
to enter this market" (Ex. 15: 378).

OSHA has decided that the Agency will produce software for
employers to use for keeping their OSHA 1904 records. There is
obviously a need for the Agency to provide outreach and assistance
materials for employers, particularly small employers, to help them
meet their obligations in the least burdensome way possible, and
software will clearly help achieve this goal. In addition, computer
software will improve the consistency of the records kept by employers,
and will assist them with analysis of the data. At this time, OSHA has
not developed the software or its specifications, but will make every
effort to produce and distribute software to assist employers by the
time this final rule becomes effective. Use of the OSHA produced
software will be optional; employers are not required to use this
software and may keep records using paper systems. Employers are also
free to produce their own software, or to purchase software.

VI. Legal Authority

A. The Final Recordkeeping Rule Is a Regulation Authorized by Sections
8 and 24 of the Act

The Occupational Safety and Health Act authorizes the Secretary to
issue two types of final rules, "standards" and "regulations."
Occupational safety and health standards, issued pursuant to section 6
of the Act, specify the measures to be taken to remedy known
occupational hazards. 29 U.S.C. 652(8), 655. Regulations, issued
pursuant to general rulemaking authority found, inter alia, in section
8 of the Act, are the means to effectuate other statutory purposes,
including the collection and dissemination of records on occupational
injuries and illnesses. 29 U.S.C. 657(c)(2).

OSHA is issuing this final recordkeeping rule as a regulation
pursuant to the authority expressly granted by sections 8 and 24 of the
Occupational Safety and Health Act, 29 U.S.C. 657, 673. Section 8
authorizes the Secretary to issue regulations she determines to be
necessary to carry out her statutory functions, including regulations
requiring employers to record and report work-related deaths and non-minor injuries and illnesses.(1) Section 8(c)(1) of the Act requires
each employer to "make, keep and preserve, and make available to the
Secretary [of Labor] or the Secretary of Health [and Human Services],
such records regarding his activities relating to this Act as the
Secretary, in cooperation with the Secretary of Health and Human
Services, may prescribe by regulation as necessary or appropriate for
the enforcement of this Act or for developing information regarding the
causes and prevention of occupational accidents and illnesses."
Section 8(c)(2) further provides that the "Secretary, in cooperation
with the Secretary of Health and Human Services, shall prescribe
regulations requiring employers to maintain accurate records of, and to
make periodic reports on, work-related deaths, injuries and illnesses
other than minor injuries requiring only first aid treatment and which
do not involve medical treatment, loss of consciousness, restriction of
work or motion, or transfer to another job." Section 8(c)(3) empowers
the Secretary to require employers to "maintain accurate records of
employee exposures to potentially toxic materials or harmful physical
agents which are required to be monitored or measured under Section 6."

Section 8(g)(1) authorizes the Secretary "to compile, analyze, and
publish, whether in summary or detailed form, all reports or
information obtained under this section." Section 8(g)(2) of the Act
empowers the Secretary "to prescribe such rules and regulations as he
may deem necessary to carry out his responsibilities under the Act."

Section 24 contains a similar grant of regulatory authority. It
requires the Secretary to "develop and maintain an effective program
of collection, compilation, and analysis of occupational safety and
health statistics * * * The Secretary shall compile accurate statistics
on work injuries and illnesses which shall include all disabling,
serious, or significant injuries and illnesses, whether or not
involving loss of time from work, other than minor injuries requiring
only first aid treatment and which do not involve medical treatment,
loss of consciousness, restriction of work or motion, or transfer to
another job." Section 24 also empowers the Secretary to "promote,
encourage, or directly engage in programs of studies, information and
communication concerning occupational safety and health statistics."
Finally, Section 24 requires employers to "file such reports with the
Secretary as he shall prescribe by regulation, as necessary to carry
out his functions under this chapter."

Section 20 of the Act, 29 U.S.C. 669, contains additional implicit
authority for collecting and disseminating data on occupational
injuries and illnesses. Section 20(a) empowers the Secretaries of Labor
and Health and Human Services to consult on research concerning
occupational safety and health problems, and provides for the use of
such research, "and other information available," in developing
criteria on toxic materials and harmful physical agents. Section 20(d)
states that "[i]nformation obtained by the Secretary and the Secretary
of [HHS] under this section shall be disseminated by the Secretary to
employers and employees and organizations thereof."

Two federal circuit Courts of Appeals have held that rules imposing
recordkeeping requirements are regulations and not standards, and are
thus reviewable initially in the district courts, rather than the
Courts of Appeals. Louisiana Chemical Assn. v.
Bingham, 657 F.2d 777,
782-785 (5th Cir. 1981) (OSHA rule on Access to Employee Exposure and
Medical Records); Workplace Health & Safety Council
v. Reich, 56 F.3d
1465, 1467-1469 (D.C. Cir. 1995) (OSHA rule on Reporting of Fatality or
Multiple Hospitalization Incidents). These courts applied a functional
test to differentiate between standards and regulations: standards aim
toward correction of identified hazards, while regulations serve
general enforcement and detection purposes, including those outlined in
section 8. E.g., Workplace Health & Safety Council,
56 F.3d at 1468. See also United Steelworkers of America v. Reich, 763 F.2d 728, 735 (3d
Cir. 1985) (Hazard Communication rule is a standard because it aims to
ameliorate the significant risk of inadequate communication about
hazardous chemicals). Clearly, the recordkeeping requirements in this
final rule serve general administrative functions: They are intended to
"aid OSHA's effort to identify the scope of occupational safety and
health problems," to "serve as the foundation for national statistics
on the number and rate of workplace injuries and illnesses" and "to
raise employers" awareness of the kinds of injuries and illnesses
occurring in their workplaces." See Functions of the Recordkeeping
System, supra. Therefore, the final rule falls squarely within the
mandate of sections 8 and 24 of the Act and is properly characterized
as a regulation.

B. The Legal Standard: The Regulation Must Be Reasonably Related to the
Purposes of the Enabling Legislation

Under section 8, the Secretary is empowered to issue "such * * *
regulations as [s]he may deem necessary to carry out [her]
responsibilities under this Act[,]" including regulations requiring
employers to record and to make reports on "work-related deaths,
injuries and illnesses other than minor injuries requiring only first
aid treatment and which do not involve medical treatment, loss of
consciousness, restriction of work or motion or transfer to another
job." 29 U.S.C. 657(g)(2), (c)(2). Similarly, section 24 directs the
Secretary to compile accurate statistics on "all disabling serious, or
significant injuries and illnesses, whether or not involving loss of
time from work, other than minor injuries. * * *" 29 U.S.C. 673(a).
Where an agency is authorized to prescribe regulations "necessary" to
implement a statutory provision or purpose, a regulation promulgated
under such authority is valid "so long as it is reasonably related to
the enabling legislation." Mourning v.
Family Publications Service, Inc., 411 U.S. 356, 369 (1973).

C. The Final Recordkeeping Rule's Key Provisions Are Reasonably Related
to the Purposes of the OSH Act

The goal of this final rule, as stated in the Summary, is to
improve the quality and consistency of injury and illness data while
simplifying the recordkeeping system to the extent consistent with the
statutory mandate. To achieve this purpose, the final rule carries
forward the key elements of the existing recordkeeping scheme, with
changes designed to improve efficiency, equity, and flexibility while
reducing, to the extent practicable, the economic burden on individual
establishments. The central requirements in the final rule may be
summarized as follows: All non-exempt employers must record all work-related,
significant injuries and illnesses. As discussed below, OSHA's
approach to each of these elements -- the scope of the exemptions from
recording requirements, the meaning of "work-relationship," and the
criteria for determining whether an injury or illness is
"significant" -- is reasonable and directly related to the statutory
language and purpose.

1. Exemptions From Recordkeeping Requirements

The final rule contains two categories of exemptions that,
together, relieve most employers of the obligation routinely to record
injuries and illnesses sustained by their employees. Section 1904.1
contains a "very small-employer" exemption: Employers need not record
injuries or illnesses in the current year if they had 10 or fewer
employees at all times during the previous year, unless required to do
so pursuant to Sections 1904.41 or 1904.42. Section 1904.2 contains a
"low-hazard industry" exemption: Individual business establishments
are not required to keep records if they are classified in specific
low-hazard retail, service, finance, insurance, or real estate
industries.

a. The size-based exemption. Section 8(d) of the Act expresses
Congress' intent to minimize, where feasible, the burden of
recordkeeping requirements on employers, particularly small businesses:
"Any information obtained by the Secretary, the Secretary of [HHS], or
a State agency under this Act shall be obtained with a minimum burden
upon employers, especially those operating small businesses.
Unnecessary duplication of efforts in obtaining information shall be
reduced to the maximum extent feasible." 29 U.S.C. 657(d).

Since 1972, the Secretary has exempted very small businesses from
most recordkeeping requirements. On October 4, 1972, OSHA issued a
provision, codified at 29 CFR 1904.15(a), exempting employers from
routine injury and illness reporting requirements for the current year
if they had no more than seven employees during the previous year. The
exemption did not relieve these businesses from the obligation to
report fatality and multiple hospitalization incidents to OSHA and to
participate in the BLS annual survey when selected to do so. 37 FR
20823 (October 4, 1972). In 1977, the Secretary amended section 1904.15
to make it applicable to businesses having ten or fewer employees
during the year preceding the current reporting year. 42 FR 38568 (July
29, 1977). As support, the amendment cited the Department of Labor
appropriations acts for fiscal years 1975 and 1976, which exempted
employers having ten or fewer employees from most routine recordkeeping
requirements, and Section 8(d) of the Act. Id. The Secretary determined
that the amendment appropriately balanced the interest of very small
businesses while preserving the essential purposes of the recordkeeping
scheme:

The [exemption] has been carefully designed to carry out the
mandate of section 8(d) without impairing the Act's basic purpose.
Thus, the [exemption] will not diminish the protections afforded
employees under the Act because all employers * * * remain subject
to the enforcement provisions of the Act. The [exemption] will
continue to require * * * small employers * * * to report fatalities
and multiple hospitalizations and to participate in the BLS annual
survey when selected to do so.

42 FR 10016 (February 18, 1977).

In the present rulemaking, the Secretary proposed to enlarge the
scope of the exemption to include employers, in industries other than
construction, having 19 or fewer employees during the entire previous
calendar year. 61 FR 4057 (February 2, 1996). At the same time, the
proposal asked for public comment on whether "the small employer
partial exemption [should] remain the same, be eliminated, or be
expanded?" 61 FR 4043. In reaching a final decision on this matter,
the Secretary resolved two interrelated questions. First, she
determined that there is no sound basis for departing from OSHA's prior
interpretation that the Act permits a carefully crafted exemption for
very small employers. Second, she determined that limiting the
exemption to employers with ten or fewer employees effectuates
Congress' intent with the minimum degree of impairment to the overall
recordkeeping scheme. The first question is essentially one of
statutory construction, and is therefore considered below. The second
question calls for an analysis of the record and is addressed in the
preamble explanation for section 1904.1 of the final rule.

It is a fundamental principle of administrative law that an agency
which chooses to reverse a previously held position must supply a
"reasoned analysis" of its decision. Motor Vehicle Mfgrs Assn. v.
State Farm Mutual Automobile Insurance Co., 463 U.S. 27, 42 (1983).
After careful consideration, the Secretary finds no persuasive basis
for eliminating the small-employer exemption in this rule. As a
threshold matter, nothing has changed the agency's long-held view that
section 8(d) permits a carefully tailored exemption from recordkeeping
requirements for very small businesses. 42 FR 10016 (February 18,
1977). This interpretation is consistent with the literal wording of
the statute and is further confirmed by the provisions in the
Department's appropriations acts for FY 1975 and 1976, exempting
employers with ten or fewer employees from routine recordkeeping and
reporting requirements. See 42 FR 5356 (January 28, 1977) (noting
restriction in FY 1975 and 1976 appropriations acts and stating OSHA
would continue to treat firms of up to 10 employees as exempt pending
permanent change in the regulations to expand the small-employer
exemption).

OSHA also concludes that a very small business exemption limited to
the routine recording and reporting of non-fatal injuries and illnesses
will not seriously undermine the recordkeeping system. OSHA explained
in Section I. of the preamble that there are three primary purposes for
recordkeeping and reporting requirements. First, the records are the
foundation for national statistics published by the BLS on the number
and rate of workplace injuries and illnesses, as well as their source,
nature and type. Second, the records provide information useful to
employers and employees in their efforts voluntarily to locate and
eliminate workplace safety and health hazards. Finally, the records are
useful to OSHA in targeting its enforcement efforts and in efficiently
conducting its safety and health inspections.

Exempting very small businesses from routine recordkeeping will not
significantly compromise these goals. The exemption has no effect upon
the obligation of these businesses to participate in the national
statistical survey administered by the BLS. See the discussion of
§ 1904.42 in Section V. Summary and Explanation. If a small business
is selected for participation in the survey, it must keep a log of
injuries and illnesses and make reports as required by the BLS. Id.
Thus, even the smallest firms continue to be represented in the
national injury and illness statistics.

The second purpose is not seriously compromised by the exemption
because injury and illness records are less necessary as an aid to
voluntary compliance efforts by very small employers and their
employees than they are for larger employers. OSHA's experience is
that, in establishments with only a few employees, management and
production personnel typically work in close concert. Because of their
size, such establishments also tend to record fewer occupational
injuries and illnesses. Accordingly, in very small firms, managers are
likely to have first-hand knowledge of those occupational injuries and
illnesses that occur in their workplaces. By the same token, it is
reasonable to believe that employees in very small firms are generally
aware of the injuries that occur in their workplaces and do not rely
heavily upon access to employer records to inform themselves about
occupational hazards. In short, review and analysis of injury and
illness records by very small business employers, or by their
employees, may not be required for awareness of workplace conditions.

Finally, routine injury and illness records are of limited
usefulness to OSHA in targeting and conducting inspections. Many OSHA
inspections are conducted in response to a specific complaint or
referral alleging unsafe conditions, or in response to a workplace
catastrophe or fatality. A large number of inspections are also
conducted under special emphasis programs at the national and local
level. The remaining inspections are conducted at specific worksites in
the construction industry and in other non-construction industries
selected under a planned schedule. Construction inspections are
selected using an econometric model that predicts the best time to
conduct an inspection at a specific construction project. The general
industry scheduled inspections are targeted primarily toward employers
with extremely high rates of occupational injury and illness, using
data supplied by employers to the OSHA Data Initiative (ODI) under the
requirements of former section 1904.17, Annual OSHA Injury and Illness
Survey of Ten or More Employers (now section 1904.41). Due to budget,
paperwork burden and logistical constraints, OSHA collects data only
from employers in high hazard industries, and has generally not
collected data from employers with fewer than 40 workers.

OSHA is also prohibited from conducting scheduled inspections of
employers with 10 or fewer employees in low hazard industries by an
annual rider on OSHA's appropriations bills which has been renewed
annually for many years. Thus, OSHA does not collect data from very
small employers, and they are excluded from the general industry
scheduled inspection program. Because very small firms have been wholly
excluded from the general schedule inspection program, the routine
injury and illness records of very small businesses have been of little
use to OSHA in targeting inspections. Should OSHA wish to include very
smaller employers in a special emphasis inspection program or other
initiative, the agency may require any business, regardless of its
size, to keep records and make reports as necessary. See 29 CFR
1904.41.

OSHA also finds that access to the Log and Incident Report would be
of little value to compliance officers in conducting inspections of
very small businesses initiated by a complaint or report of a fatality
or an accident resulting in multiple hospitalizations. OSHA has long
acknowledged that while injury and illness records are frequently
useful in identifying hazardous areas or operations within larger
establishments subject to programmed inspections, they are
significantly less important in the conduct of inspections in the
smallest businesses. As OSHA has stated, "experience has shown that
when dealing with small employers, the injury and illness records * * *
are normally not needed by the CSHO to locate hazards during an
inspection. In those cases where log information may be needed, the
CSHO can easily obtain the information by interviewing the employees."
42 FR 10016 (February 18, 1977). See also 47 FR 57699, 5700 (December
28, 1982) (in conducting complaint or fatality inspections, the hazard
information is usually provided by the complaint itself, or through
prompt investigation.) For these reasons, the Secretary believes that
an exemption for very small employers, reasonably tailored to the
purposes served by recordkeeping requirements, is appropriate.

b. The hazard-based exemption. Since 1982, OSHA has exempted from
routine recordkeeping requirements certain industries classified in
OMB's Standard Industrial Classification (SIC) Manual. The 1982
exemption was limited to establishments in SIC Industry Groups that (1)
were not subject to general schedule inspections, and (2) had average
lost workday case injury rates, as published by the BLS, at or below
75% of the national average. In 1982, the industry groups that met
these criteria were those classified as retail trade, finance,
insurance, real estate, and services -- SIC codes 52-89, excluding 52-54,
70, 75, 76, 79, and 80. 47 FR 57699-57,700 (December 28, 1982).

The purpose of the exemption "was to further OSHA's continuing
effort under section 8(d) of the Act to reduce the paperwork burden on
employers without compromising worker safety and health." 47 FR 57700.
Exempting low-hazard industries from routine record-keeping was
justified, OSHA explained, for the same reasons that warranted
exempting very small businesses. Injury and illness records from
establishments in the affected SIC codes were not of significant
benefit to OSHA because these industry groups were not then targeted
for general schedule inspections. Id. The records were not a
significant source of information for employers and employees because
BLS data showed that approximately 94% of all establishments in the
affected industry groups could be expected to have fewer than two
injuries per establishment on an annual basis. Id. Finally, the
exemption would not affect the reliability of safety and health
statistics because the affected establishments would continue to
participate in the BLS annual survey of occupational injuries and
illnesses. Id.

OSHA continues to believe that a properly tailored exemption for
low-hazard industries is appropriate. Congress intended in section 8(d)
to minimize the recordkeeping burden on all employers, not only small
businesses. Exempting from routine injury and illness reporting
requirements those employers whose records are unlikely to be of
significant benefit to OSHA, or to the employers and their employees,
serves this important interest. However, OSHA recognizes that the
balance between the interest of minimizing recordkeeping burdens and
that of ensuring accurate, reliable and useful information is a
delicate one. In the final rule, OSHA has substantially revised the
list of exempt low-hazard industries based upon more reliable three-digit
industry classification data. See the discussion of § 1904.1,
in the following Summary and Explanation. With these changes, OSHA
believes that the rule strikes the appropriate balance.

2. The Meaning of "Work-Relationship"

Section 8 of the Act directs the Secretary to prescribe regulations
requiring employers to "maintain accurate records of * * * work-related
deaths injuries and illnesses [of a non-minor nature]. 29
U.S.C. 657(c)(2). The definition of work-relationship in section 1904.5
of the final rule is consistent, in all but one respect, with the
definition in the Guidelines to the former rule. The final rule states
that an injury or illness is work-related "if an event or exposure in
the work environment either caused or contributed to [it] or
significantly aggravated a pre-existing injury or illness. Work-relatedness
is presumed for injuries and illnesses resulting from
events or exposures occurring in the work environment, unless an
exception listed in section 1904.5(b)(2) specifically applies"
(emphasis added).

The Guidelines state that, "[i]f an event * * * occurred in the
work environment that caused or contributed to the injury", the case
would be recordable, assuming it meets the other requirements for
recordability. Ex. 2 at p. 32 (original emphasis). Further instructions
in the Guidelines provided that:

The general rule is that all injuries and illnesses which result
from events or exposures occurring to employees on the employer's
premises are presumed to be work related. This presumption is
rebuttable. * * * However, the nature of the activity which the
employee is engaged in at the time of the event or exposure, the
degree of employer control over the employee's activity, the
preventability of the incident, or the concept of fault do not
affect the determination.

Ex. 2 at p. 34 (original emphasis). The only significant difference
between the final rule and the former rule is that the final rule
requires that work "significantly" aggravate a pre-existing injury or
illness before the case is recordable.

OSHA's approach to work-relationship in both the former and the
final recordkeeping rules reflects two important principles. The first
is that work need only be a causal factor for an injury or illness to
be work-related. The rule requires neither precise quantification of
the occupational cause, nor an assessment of the relative weight of
occupational and non-occupational causal factors. If work is a
tangible, discernible causal factor, the injury or illness is work-related.
The second principle is that a "geographic presumption"
applies for injuries and illnesses caused by events or exposures that
occur in the work environment. These injuries and illnesses must be
considered work-related unless an exception to the presumption
specifically applies.

The final rule's geographic presumption reflects a theory of
causation similar to that applied by courts in some workers'
compensation cases. Under the "positional-risk" test, an injury may
be found to "arise out of" employment for compensation purposes if it
would not have occurred but for the fact that the conditions and
obligations of employment placed the claimant in the position where he
or she was injured. See 1 Larson's Workers' Compensation Law section
6.50 (1977). Accord, Odyssey/Americare of Oklahoma v. Worden, 948 P.2d
309, 311 (Okla. 1997). Under this "but for" approach to work-relationship,
it is not necessary that the injury or illness result
from conditions, activities or hazards that are uniquely occupational
in nature. Accordingly, the presumption encompasses cases in which an
injury or illness results from an event at work that is outside the
employer's control, such as a lightning strike, or involves activities
that occur at work but that are not directly productive, such as
horseplay.

The proposed rule asked for comment on whether OSHA should abandon
its historic approach and adopt a new test for determining work-relationship.
61 FR 4044, 4045. The proposal outlined three alternative
tests in which the determination of work-relationship turned on the
degree to which the injury or illness was linked to occupational
causes, as compared with personal factors such as off-the job
activities, aging, or pre-existing medical conditions. Two of these
alternative tests required evidence of a high degree of work causation
to establish work-relationship. Alternative 1 required that
occupational factors be the "sole cause" of the injury or illness;
any evidence of non-work related causal factors was sufficient to
exclude the case. Alternative 2 required that occupational factors be
the "predominant cause" before the case could be considered work-related.
See 61 FR 4044. Some commenters suggested a modification to
Alternative 2 that would have involved substitution of the word
"substantial" or "significant" for "predominant."

The third alternative test was significantly more expansive than
that adopted in the final rule. Under Alternative 3, an injury or
illness would be considered work-related if the work environment had
any possibility of playing a causal role. 61 FR 4044.

Some commenters favored a somewhat different test for work-relationship
that focused on the nature of the injury-causing event in
the workplace. This test would include in the OSHA records only those
cases resulting from uniquely occupational or job-related activities or
processes. Supporters of this approach argued that it would exclude
injuries and illnesses caused by factors at work that are unrelated to
production tasks, or that are unpreventable by the employer's safety
and health program.

After careful consideration of the record, OSHA believes that the
final rule's test for work-relationship is both more consistent with
the Act's purpose and more practical than the "quantified occupational
cause" tests or the "unique occupational conditions" test. The
language of the statute itself indicates that Congress did not intend
to give "work-related" a narrow or technical meaning, but rather
sought to cover a variety of causal relationships that might exist in
workplaces. Section 2 of the Act addresses injuries and illnesses
arising out of "work situations." Sections 2(b)(1), 2(b)(2), and
2(b)(4) refer to "places of employment," and to the achievement of
safe and healthful "working conditions." Section 2(b)(7) seeks to
assure that no employee will suffer diminished health or life
expectancy as a result of his "work experience." Section 2(b)(12)
states that one of the Act's purposes is to provide for reporting
procedures which "accurately describe the nature of the occupational
safety and health problem." Section 2(b)(13) encourages joint labor-management
efforts to reduce injuries and disease "arising out of employment."

This conclusion is further supported by the Act's stated purpose to
promote research into the causes and prevention of occupational
injuries and illnesses. Section 2 of the Act establishes Congress'
intent to improve occupational safety and health, inter alia, by:

Providing for research in the field of occupational safety and
health, including the psychological factors involved, and by
developing innovative methods, techniques and approaches for dealing
with occupational safety and health problems. 29 U.S.C.
§ 651(b)(5)

Providing for appropriate reporting procedures with respect to
occupational safety and health which will help achieve the
objectives of this Act and accurately describe the nature of the
occupational safety and health problems. 29 U.S.C. § 651(b)(12).

The legislative history of the Act demonstrates Congress' awareness
of the importance of developing information for future scientific use.
The Committee Report accompanying the Senate bill reported to the floor
noted that,

[i]n the field of occupational health, the view is particularly
bleak, and due to the lack of information and records, may well be
considerably worse than we currently know. * * * Recent scientific
knowledge points to hitherto unsuspected cause-and-effect
relationships between occupational exposures and many of the so-called
chronic diseases -- cancer, respiratory ailments, allergies,
heart disease, and others. In some instances, the relationship
appears to be direct: asbestos, ionizing radiation, chromates, and
certain dye intermediaries, among others, are directly involved in
the genesis of cancer. In other cases, occupational exposures are
implicated as contributory factors. The distinction between
occupational and non-occupational illnesses is growing increasingly
difficult to define.

S. Rep. No. 1282, 91st Cong., 2d Sess. 2 (1970), reprinted in
Subcommittee on Labor of the Senate Committee on Labor and Public
Welfare, Legislative History of the Occupational Safety and Health Act
of 1970 (Committee Print 1971) at 142 (Leg. Hist.). With this background
in mind, the committee stated that it "expects the Secretary of Labor
and the Secretary of [HHS] will make every effort through the authority
to issue regulations and other means, to obtain complete data regarding
the occurrence of illnesses, including those resulting from occupational
exposure which may not be manifested until after the termination of such
exposure." Leg. Hist. at 157.

Both the Senate and the House Committees expressed concern that the
statute not be interpreted in a way that would result in under-reporting
of injuries and illnesses. The Senate report states:

The committee recognizes that some work-related injuries or
ailments may involve only a minimal loss of work time or perhaps
none at all, and may not be of sufficient significance to the
Government to require their being recorded or reported. However, the
committee was also unwilling to adopt statutory language which, in
practice might result in under-reporting. The committee believes
that records and reports prescribed by the Secretary should include
such occurrences as work-related injuries and illnesses requiring
medical treatment or restriction or reassignment of work activity,
as well as work-related loss of consciousness.

Leg. Hist. at 157. The House Report similarly noted that while some
injuries and illnesses might not be of enough value to require
recordation, "the greater peril" lay in allowing under reporting.
Leg. Hist. at 860. Therefore, the report added, "[the] language 'all
work-related injuries, [and illnesses]' should be treated as a minimum
floor. * * *"

In light of these purposes, it is apparent that Congress did not,
in Section 8, mean to limit recordable "work-related" injuries and
illnesses only to those caused primarily or substantially by work. It
is evident from the statute that Congress wanted employers to keep
accurate records of non-minor injuries and illnesses, in part, to serve
as a basis for research on the causes and prevention of industrial
accidents and diseases. This research is needed, among other reasons,
to further examine and understand those occupational factors implicated
as contributory causes in injuries and diseases. To serve this purpose,
the records should include cases in which there is a tangible
connection between work and an injury or illness, even if the causal
effect cannot be precisely quantified, or weighed against non-occupational factors.

The first two alternative quantification theories outlined in the
preamble would exclude important information from the records. These
theories would eliminate cases in which the work environment is
believed to have played a definite role in the accident or the onset of
disease, but not enough is known to quantify the effect of work factors
or to assess the relative contribution of work and non-work factors.
However, the information provided by cases having a tangible, yet
unquantifiable, connection with the work environment is useful to
employers, employees and researchers and thus serves the recordkeeping
purposes envisioned by Congress.

On the other hand, the third alternative theory in the proposal
would sweep too broadly. A work-relationship test that is met if work
has "any possibility of playing a role in the case" would include
virtually every injury or illness occurring in the work environment. 61
Fed. Reg. 4044. Recording cases in which the causal connection to work
is so vague and indefinite as to exist only in theory would not
meaningfully advance research, or serve the other purposes for
requiring recordkeeping. For these reasons, OSHA has rejected the three
alternative theories outlined in the proposal.

The "unique occupational activity" test, which some commenters
favored instead of the geographic presumption, would limit recorded
injuries and illnesses to those caused by an activity or process
peculiarly occupational in nature. Supporters of this approach
identified several types of cases that would be work-related under the
geographic presumption, but not recordable under an activities-based
approach. These include cases in which the injury or illness was not
caused by the physical forces or hazards unique to industrial
processes, cases in which the employee was not injured while performing
an activity or task directly related to production, and cases in which
the injury or illness was not preventable by the employer.

The "unique occupational activity" test is unsuitable for
essentially the same reasons that militate against the first two
alternatives described in the proposal. The statutory language and
purpose do not reflect a Congressional intent to limit recording only
to those cases resulting from uniquely occupational hazards or
activities. Rather, the statute shows that Congress knew that employees
were being injured and made ill in a variety of ways and under a
variety of circumstances, and wanted employers to record all cases
causally related to the work environment. The "but-for" theory
underlying the geographic presumption is a widely accepted legal test
for causation and is consistent with the statutory language and
purpose.

The "unique occupational activities" test, like the
"quantification" tests, would likely result in exclusion of important
information from the records. An activity-based test for work-relationship
could obscure the role of factors in the work environment
not directly linked to production, such as violence perpetrated by
employees and others or tuberculosis outbreaks. In addition, the
precise causal mechanism by which an employee has been injured or made
ill at work may not be known at the time of the accident, or may be
misunderstood. To serve the statute's research purposes, the records
must reflect not only those injuries and illnesses for which the
precise causal mechanism is apparent at the time of recordation, but
also those for which the mechanism is imperfectly understood. The
alternative approaches to work-relationship would severely limit the
usefulness of injury and illness data for research purposes,
particularly research to uncover latent patterns of health impairment
and disease and to establish causal connections between diseases and
exposure to particular hazards.

The Occupational Safety and Health Review Commission has affirmed
the approach to work-relationship taken in the former rule. General
Motors Corp., Inland Div., 8 O.S.H. Cas. (BNA) 2036, 2039-2040 (August
29, 1980). The issue in General Motors was whether the employer was
required to record respiratory ailments of three employees, based on
notations from the employees' treating physicians that their ailments
were probably related to exposure to a chemical substance at work. The
Commission rejected the employer's argument that the recordkeeping rule
required recording only of illnesses directly caused by work
activities, stating:

To accept Respondent's interpretation would impose a static view
of scientific knowledge. Only illnesses in which the known cause was
the occupational environment would be recorded. Unknown medical
correlations between disease and the workplace would be obscured by
this inadequate recording obligation. Under this interpretation of
the statute and regulations, OSHA and NIOSH would be significantly
restrained from fulfilling their statutory obligation of making the
workplace healthier. * * * [T]he primary purpose of the recording
obligation is to develop information for future scientific use.

8 O.S.H. Cas. at 2040. Accordingly, OSHA believes that there is a sound
legal basis for the definition of work-relationship in the final rule.

There are also sound policy justifications. The approach to "work-relationship"
adopted in the final rule is more cost-effective than
the alternative approaches and will result in more accurate injury and
illness data. OSHA expects that for each reported injury or illness,
employers generally will be able to apply the geographic presumption
more easily and quickly than a test requiring an assessment of the
relative contribution of employment and personal causes. The
incremental reduction in the time necessary to complete each entry,
when multiplied by the total number of entries per year, will result in
a substantial cumulative saving in paperwork burden in comparison to
the burden that would be imposed by the alternatives.

The geographic presumption will also produce more consistent and
accurate reporting. OSHA believes that it would be difficult to measure
the precise degree to which personal and occupational factors cause
accidents or illnesses. Accordingly, any test requiring that job duties
or tasks be "significant" or "predominant" causative factors would
necessarily involve a high degree of subjective judgment. There is
likely to be substantial inconsistency, both in the treatment of
successive, similar cases by the same employer, and in the treatment of
such cases among different employers. Moreover, such a test would fail
to capture cases in which the workplace contribution to an injury or
illness was imperfectly known or misunderstood at the time the case was
reported. Recording all cases caused by events or exposures at work,
with only limited exceptions, produces data that enables OSHA,
employers and others to better understand the causal relationships
present in the work environment. Although OSHA has not adopted a test
for determining significant contribution by work, the final rule does
include provisions to make sure that workplace aggravation of a pre-existing
injury must be significant before work relationship is
established (see discussion of 1904.5(b)(4)).

A number of commenters argued that because OSHA's mission is to
eliminate preventable occupational injuries and illnesses, the
determination of work-relatedness must turn upon whether the case could
have been prevented by the employer's safety and health program. Dow
expressed this view as follows:

[T]he goal of this recordkeeping system should be to accurately
measure the effectiveness of safety and health programs in the
workplace. Activities where safety and health programs could have no
impact on preventing or mitigating the condition should not be
logged and included in the Log and Summary nor used by OSHA to
determine its inspection schedule. If the event was caused by
something beyond the employer's control, it should not be considered
a recordable event that calls into question a facility's safety and
health program. * * * Credibility in this regulation rests on
whether the recorded data accurately reflects the safety and health
of the workplace. Including events where the workplace had virtually
no involvement undermines the credibility of the system and results
in continued resistance to this regulation.

Ex. 15-335B. The law firm of Constangy, Brooks and Smith, LLC,
urged OSHA to adopt the second alternative definition in the proposal
because cases that are "predominantly caused by workplace conditions"
are the ones most likely to be preventable by workplace controls. They
stated, "[s]ince OSHA's ultimate mission is the prevention of
workplace injuries and illnesses, it is reasonably necessary to require
recording only when the injury or illness can be prevented by the
employer." Ex. 15-345.

OSHA believes that these comments reflect too narrow a reading of
the purposes served by injury and illness records. Certainly one
important purpose for recordkeeping requirements is to enable
employers, employees and OSHA to identify hazards that can be prevented
by compliance with existing standards or recognized safety practices.
However, the records serve other purposes as well, including
facilitating the research necessary to support new occupational safety
and health standards and to better understand causal connections
between the work environment and the injuries and illnesses sustained
by employees. As discussed above, these purposes militate in favor of a
general presumption of work-relationship for injuries and illnesses
that result from events or exposures at the worksite, with exceptions
for specific types of cases that can be safely excluded without
significantly impairing the usefulness of the database.

3. The Criteria for Determining the Significance of an Injury or
Illness

Section 1904.7 of the final rule sets forth the criteria to be used
by employers in determining whether work-related occupational injuries
and illnesses are significant, and therefore recordable. Under
§ 1904.7, a work-related injury or illness is significant for
recordkeeping purposes if it results in any of the following: death,
days away from work, restricted work or transfer to another job,
medical treatment beyond first aid, or loss of consciousness. Employers
must also record any significant injury or illness diagnosed by a
physician or other licensed health care professional even if it does
not does not result in the one of the listed outcomes. OSHA's
definition of a "significant" injury or illness in this context is
based on two key principles discussed below. The first is that the
requirement for recording only significant cases applies equally to
"injuries" and "illnesses" for recordkeeping purposes. The second
principle is that the criteria expressly mentioned in the Act, such as
death, loss of consciousness or restriction of work, are mandatory but
not exclusive indicia of significance; any significant injury or
illness diagnosed by a physician or other licensed health care
professional must also be recorded. These two principles are addressed
below, while the definitions applicable to the specific criteria
themselves, and related evidentiary issues, are discussed in the
preamble explanation for section 1904.7.

a. The significant case requirement applies equally to injuries and
illnesses; employers are no longer to report insignificant illnesses.
OSHA distinguishes between injuries and illnesses based on the nature
of the precipitating event or exposure. Cases which result from
instantaneous events are generally considered injuries, while cases
which result from non-instantaneous events, such as a latent disease or
cumulative trauma disorder, are considered illnesses. Id.

Under the former recordkeeping regulations, occupational injuries
had to be recorded if they were non-minor in nature; that is, if they
resulted in loss of consciousness, or required medical treatment, time
off work, restriction of work, lost time, or transfer to another job.
61 FR 4036. However, all occupational illnesses had to be reported,
regardless of severity. Id. This difference in the severity threshold
for recording injuries and illnesses had, in the past, been based upon
the particular phrasing of section 8(c)(2) of the Act:

The Secretary * * * shall prescribe regulations requiring
employers to maintain accurate records of, and to make periodic
reports on, work-related deaths, injuries and illnesses, other than
minor injuries requiring only first aid treatment and which do not
involve medical treatment, loss of consciousness, restriction of
work or motion, or transfer to another job."

29 U.S.C. 657(c)(2). Because the severity criteria appear in the
clause defining "minor injuries," OSHA had construed the section to
require recordation of all work-related illnesses, even those that do
not meet the severity characteristics expressly applicable to "injuries."

OSHA has reconsidered its position in this rulemaking, and has
concluded that the former rule was inappropriate in several respects.
First, although the severity characteristics listed in section 8(c)(2)
of the Act apply expressly to "injuries," the Act contains persuasive
indications that Congress also meant to require recordation only of
"significant" illnesses, as determined by reasonable criteria.
Section 24(a) states that "[t]he Secretary shall compile accurate
statistics on work injuries and illnesses which shall include all
disabling, serious, or significant injuries and illnesses * * * other
than minor injuries requiring only first aid treatment and which do not
involve medical treatment * * * ." 29 U.S.C. 673 (a). The legislative
history also supports this view. The statement of the House managers on
the resolution of conflicting House and Senate bills states that:

A Senate bill provision without a counterpart in the House
amendment permitted the Secretary to require an employer to keep
records and make reports on "all work-related deaths, injuries and
illnesses." The House receded with an amendment limiting the
reporting requirement to injuries and illnesses other than of a
minor nature, with a specific definition of what is not of a minor
nature.

Leg. Hist. at 1190 (emphasis supplied). The former rule did not
appropriately implement this intent. In the first place, OSHA's prior
interpretation that section 8(c)(2) limits the applicability of the
listed severity criteria only to injuries does not necessarily mean
that illnesses must be recorded without regard to their significance.
As a textual matter, such a reading simply leaves open the question of
what, if any, severity criteria apply to illnesses.

OSHA believes that the Act does not support a different severity
threshold for injuries than for illnesses. OSHA is now persuaded that
its prior reading of section 8(c)(2) placed too much emphasis on the
fact that the severity criteria modify the word "injuries" in the
clause, "other than minor injuries requiring only first aid treatment
and which do not involve medical treatment, loss of consciousness,
restriction of work or motion or transfer to another job." 29 U.S.C.
657(c)(2). Congress' failure to list specific severity criteria for
illnesses, as it did for injuries, does not, in itself, compel the
inference that two different sets of criteria must apply. Congress
meant to limit recordation to significant injuries and illnesses alike,
and absent strong indications to the contrary, it is reasonable to
presume that Congress meant the same severity threshold to apply to
both conditions.

In addition, there are strong policy reasons for avoiding a
distinction between injuries and illnesses based on severity. OSHA
explained in the proposal that the current distinction between injuries
and illnesses based on the nature of the precipitating event has caused
some degree of confusion and uncertainty. Using one set of criteria for
severity means that employers will not have to decide whether a case is
an injury or an illness in determining its recordability. This
simplifies the recordkeeping system, resulting in more accurate injury
and illness data while reducing the recordkeeping burden for employers
who are required to maintain records (61 FR 4036). Employers will
continue to classify each recordable case as either an injury or an
illness on the OSHA 300 Log, but the decision no longer has any effect
on whether or not the case must be recorded.

b. The criteria listed in the Act are mandatory but not exclusive
indicia of significance. A final issue relating to significance is the
effect to be given a finding that an injury or illness results in, or
does not result in, one of the outcomes listed in the statute: death,
days away from work, restricted work or transfer to another job,
medical treatment beyond first aid, or loss of consciousness. The
implication arising from the wording of section 8(c)(2) and section 24
is that if an injury or illness results in one of the listed outcomes,
it must be deemed significant for recordkeeping purposes. This
position, which reflects OSHA's longstanding, consistent interpretation
of the statute, was not seriously questioned in the rulemaking.
Accordingly, the final rule requires that a work-related injury or
illness be recorded if it results in one of the outcomes mentioned in
the statute.

The final rule also requires that a case be recorded, whether or
not it results in one of the listed outcomes, if it involves a
significant injury or illness diagnosed by a physician or other
licensed health care professional. 29 CFR 1904.10(b). Nothing in the
statute compels the conclusion that the criteria mentioned in sections
8 and 24 are the exclusive indicia of severity for recordkeeping
purposes. Congress directed the Secretary to collect data on "all
disabling, serious, or significant injuries and illnesses, whether or
not involving loss of time from work," other than minor injuries * * *
which [do not result in one of the listed outcomes]. 29 U.S.C. 673(a).
A reasonable reading of this language is that while an injury that
meets one of the listed criteria is non-minor and must be recorded, the
converse does not necessarily follow. An injury or illness may
reasonably be viewed as significant, and therefore recordable, even if
it is not immediately followed by death, loss of consciousness, or
job-related disability. For example, an employee diagnosed with an
unquestionably serious work-related disease, such as asbestosis or
mesothelioma, may forego or postpone medical treatment and continue
temporarily to perform his or her normal job duties. Focusing
exclusively on the basic criteria listed in the statute in cases such
as these could result in underrecording of serious cases. Accordingly,
the final rule requires employers to record any significant injury or
illness that is diagnosed. A thorough discussion of this requirement,
including a definition of what constitutes a "significant" injury or
illness for this purpose, is contained in the preamble discussion of
section 1904.7.

Because the provisions of the final recordkeeping rule, as
explained above and in the subsequent sections of this preamble, are
reasonably related to the statutory purposes, the Secretary finds that
the rule is necessary to carry out her responsibilities under the Act.
The rule is therefore a valid exercise of the Secretary's general
rulemaking authority under Section 8. Cf. Mourning v.
Family Publications Services, 411 U.S. 356.

VII. Summary and Explanation

The following sections discuss the contents of the final 29 CFR
Part 1904 and section 1952.4 regulations. OSHA has written these
regulations using the plain language guidance set out in a Presidential
Memo to the heads of executive departments and agencies on June 1,
1998. The Agency also used guidance from the Plain Language Action
Network (PLAN), which is a government-wide group working to improve
communications from the Federal government to the public, with the
goals of increasing trust in government, reducing government costs, and
reducing the burden on the public. For more information on PLAN, see
their Internet site at
http://www.plainlanguage.gov/.

The plain language concepts encourage government agencies to adopt
a first person question and answer format, which OSHA used for the Part
1904 rule. The rule contains several types of provisions. Requirements
are described using the "you must * * *" construction, prohibitions
are described using "you may not * * *", and optional actions that
are not requirements or prohibitions are preceded by "you may * * *." OSHA
has also included provisions to provide information to the public in
the rule.

Subpart A. Purpose

The Purpose section of the final rule explains why OSHA is
promulgating this rule. The Purpose section contains no regulatory
requirements and is intended merely to provide information. A Note to
this section informs employers and employees that recording a case on
the OSHA recordkeeping forms does not indicate either that the employer
or the employee was at fault in the incident or that an OSHA rule has
been violated. Recording an injury or illness on the Log also does not,
in and of itself, indicate that the case qualifies for workers'
compensation or other benefits. Although any specific work-related
injury or illness may involve some or all of these factors, the record
made of that injury or illness on the OSHA recordkeeping forms only
shows three things: (1) that an injury or illness has occurred; (2)
that the employer has determined that the case is work-related (using
OSHA's definition of that term); and (3) that the case is non-minor,
i.e., that it meets one or more of the OSHA injury and illness
recording criteria. OSHA has added the Note to this first subpart of
the rule because employers and employees have frequently requested
clarification on these points.

The following paragraphs describe the changes OSHA has made to the
Purpose provisions in Subpart A of the final rule, and discusses the
Agency's reasons for these changes. Proposed section 1904.1 of Subpart
A contained three separate paragraphs. Proposed paragraph (a) stated
that the purpose of the recordkeeping rule (Part 1904) was "to require
employers to record and report work-related injuries, illness and
fatalities." It also described several ways in which such records were
useful to employers, employees, OSHA officials, and researchers
evaluating and identifying occupational safety and health issues.

Proposed paragraph (b) noted that the recording of a job-related
injury, illness or fatality did not necessarily impute fault to the
employer or the employee, did not necessarily mean that an OSHA rule
had been violated when the incident occurred, and did not mean that the
case was one for which workers' compensation or any other insurance-related benefit was appropriate. The third paragraph in proposed
section 1904.1, proposed paragraph (c), stated that the regulations in
Part 1904 had been developed "in consultation with the Secretary of
Health and Human Services" (HHS), as required by Section 24(a) of the
Act.

In the final rule, OSHA has moved much of this material, which was
explanatory in nature, from the regulatory text to the preamble. This
move has simplified and clarified the regulatory text. The final rule's
Purpose paragraph simply states that: "The purpose of this rule (Part
1904) is to require employers to record and report work-related
fatalities, injuries and illnesses." This final rule statement is
essentially identical to the first sentence of the proposed Purpose
section. It clearly and succinctly states OSHA's reasons for issuing
the final rule.

A number of commenters (see, e.g., Exs. 25; 15: 199, 305, 313, 346,
348, 352, 353, 375, 418, 420) specifically addressed proposed section
1904.1. The principal points raised by these commenters concerned: (1)
Statements in proposed paragraph (a) about the quality of the data
captured by the records; (2) proposed paragraph (b)'s discussion of the
relationship between OSHA recordkeeping and employer/employee fault,
violations of OSHA rules, and the workers' compensation system, and (3)
the statement in proposed paragraph (c) that discussed OSHA's
consultation with the Secretary of Health and Human Services in
developing this rule. Each of these issues is discussed in detail
below.

Most comments on proposed paragraph (a) took issue with the
language that OSHA used to describe the statistical use of the records
(see, e.g., Exs. 25, 15: 305, 346, 348, 375, 420). Typical of these
comments is one from the National Association of Manufacturers: "We
urge OSHA to remove the following unverified and conclusory statement
from § 1904.1(a): "The records: * * * accurately describe the
nature of occupational safety and health problems for the Nation, State
or establishment" (Exs. 25, 15: 305). OSHA did not intend this
statement to attest with certainty to the validity of national
occupational statistics. Proposed section 1904.1(a) merely paraphrased
section 2(b) of the Act, which states that such records "will help
achieve the objectives of this Act and accurately describe the nature
of the occupational safety and health problem." In response to
commenters, OSHA has simplified the final rule by deleting the proposed
listing of the functions of the records required by this rule.

As discussed earlier, proposed paragraph (b) stated that the
recording of a case did not "necessarily mean that the employer or
employee was at fault, that an OSHA standard was violated, or that the
employee is eligible for workers' compensation or other insurance
benefits." The last sentence of proposed paragraph (b) described the
various types of workplace events or exposures that may lead to a
recordable injury or illness.

A number of commenters agreed with the proposed statements on
fault, compliance, and the relationship between the recording of a case
and workers' compensation or other insurance (see, e.g., Exs. 25, 15:
305, 346, 420). Employers have frequently asked OSHA to explain the
relationship between workers' compensation reporting systems and the
OSHA injury and illness recording and reporting requirements. As NYNEX
(Ex. 15: 199) noted,

[t]he issue of confusion between OSHA recordkeeping and workers'
compensation/insurance requirements cannot be totally eliminated as
the workers' compensation criteria vary somewhat from state to
state. There will always be some differences between OSHA
recordability and compensable injuries and illnesses. The potential
consequences of these differences can be minimized, however, if all
stakeholders in the recordkeeping process (i.e., employers,
employees, labor unions, OSHA compliance officials) are well
informed that OSHA recordability does not equate to compensation
eligibility. This can be facilitated by printed reminders on all of
the OSHA recordkeeping documents (e.g., forms, instructions,
pamphlets, compliance directives, etc.).

As NYNEX observed, employers must document work-related injuries
and illnesses for both OSHA recordkeeping and workers' compensation
purposes. Many cases that are recorded in the OSHA system are also
compensable under the State workers' compensation system, but many
others are not. However, the two systems have different purposes and
scopes. The OSHA recordkeeping system is intended to collect, compile
and analyze uniform and consistent nationwide data on occupational
injuries and illnesses. The workers' compensation system, in contrast,
is not designed primarily to generate and collect data but is intended
primarily to provide medical coverage and compensation for workers who
are killed, injured or made ill at work, and varies in coverage from
one State to another.

Although the cases captured by the OSHA system and workers'
compensation sometimes overlap, they often do not. For example, many
injuries and illnesses covered by workers' compensation are not
required to be recorded in the OSHA records. Such a situation would
arise, for example, if an employee were injured on the job, sent to a
hospital emergency room, and was examined and x-rayed by a physician,
but was then told that the injury was minor and required no treatment.
In this case, the employee's medical bills would be covered by workers'
compensation insurance, but the case would not be recordable under
Part 1904.

Conversely, an injury may be recordable for OSHA's purposes but not
be covered by workers' compensation. For example, in some states,
workers' compensation does not cover certain types of injuries (e.g.,
certain musculoskeletal disorders) and certain classes of workers
(e.g., farm workers, contingent workers). However, if the injury meets
OSHA recordability criteria it must be recorded even if the particular
injury would not be compensable or the worker not be covered.
Similarly, some injuries, although technically compensable under the
state compensation system, do not result in the payment of workers'
compensation benefits. For example, a worker who is injured on the job,
receives treatment from the company physician, and returns to work
without loss of wages would generally not receive workers' compensation
because the company would usually absorb the costs. However, if the
case meets the OSHA recording criteria, the employer would nevertheless
be required to record the injury on the OSHA forms.

As a result of these differences between the two systems, recording
a case does not mean that the case is compensable, or vice versa. When
an injury or illness occurs to an employee, the employer must
independently analyze the case in light of both the OSHA recording
criteria and the requirements of the State workers' compensation system
to determine whether the case is recordable or compensable, or both.

The American Federation of Labor and Congress of Industrial
Organizations (AFL-CIO) urged OSHA to emphasize the no-fault philosophy
of the Agency's recordkeeping system, stating:

The AFL-CIO is encouraged by some provisions currently in the
proposed rulemaking which indirectly address underreporting. But, we
believe the Agency must take it one step further. To adequately
address this problem, the Agency must encourage employers to adopt a
"no fault system" philosophy in the workplace and remove barriers
which discourage the reporting of injuries and illnesses by
employees. This philosophy will not only encourage workers to report
injuries and illnesses, but also encourage those individuals (e.g.,
supervisors, safety personnel) responsible for recording this data
to report all recordable incidents (Ex. 15: 418).

OSHA believes that the note to the Purpose paragraph of the final
rule will allay any fears employers and employees may have about
recording injuries and illnesses, and thus will encourage more accurate
reporting. Both the Note to Subpart A of the final rule and the new
OSHA Form 300 expressly state that recording a case does not indicate
fault, negligence, or compensability.

The Workplace Health and Safety Council, the American Coke and Coal
Chemicals Institute, and the National Oilseed Processors Association
(Exs. 15: 313, 352, 353) all urged OSHA to improve on this paragraph of
the proposed rule in two ways. First, these commenters asked OSHA to
remove the word "necessarily" from the language of proposed paragraph
(b), which stated that recording did not "necessarily mean" that
anyone was at fault, that a standard had been violated, or that the
case was compensable:

The qualification "necessarily" robs the [proposed] sentences
of their meaning and makes them inaccurate. Using the word
erroneously implies that merely listing an injury sometimes does
mean that the employer or employee was at fault, that an OSHA
standard was violated, or that the employee is eligible for workers'
compensation. Clearly, this is not what OSHA intended to convey.
Indeed, the word "necessarily" may actually worsen the problem
OSHA seeks to solve, for attorneys and consultants reading the
proposed provision might well advise employers that the provision
actually endorses some uses of a listing against an employer.

OSHA should, therefore, delete the word "necessarily. * * *"
Alternatively, the sentence in the regulation should read: "That an
injury or illness is recordable has no bearing on whether the
employer or employee was at fault, an OSHA standard violated, or the
employee is eligible for workers' compensation. * * *" The legend
in the form would be similarly changed (Exs. 15: 313, 352, 353).

These three commenters (Exs. 15: 313, 352, 353) also suggested the
following:

(a) much preferred additional solution, would be for OSHA to
promulgate in the final version a provision that makes inadmissible
in all proceedings, both those under the OSH Act and those under any
state or federal law, the entries in Form OSHA 300 and 301 as
evidence of fault or culpability. Such a regulation would give
employers the necessary assurance that their recordkeeping forms
would not be used against them. Injured employees would lose nothing
by this, for they could still be permitted to prove the fact of
injury, its work-relatedness, and its consequence, with normal
proof. They would simply not be permitted to introduce the forms as
evidence of culpability. Such a rule would implement, be consistent
with, and be authorized by Section 4(b)(4) of the Act, which
prohibits the Act from affecting workers' compensation and tort
schemes.

OSHA agrees with the point made by these commenters about the
proposed rule's use of the word "necessarily." Accordingly, the word
necessarily has been deleted from the Note to the Purpose paragraph of
the final rule. However, OSHA has rejected the suggestion made by these
commenters to limit the admissibility of the forms as evidence in a
court proceeding. Such action is beyond the statutory authority of the
agency, because OSHA has no authority over the courts, either Federal
or State.

In the proposal, the no-fault statement was followed by a listing
of the various causes of recordable injuries and illnesses:
"Recordable workplace injuries and illnesses result from a variety of
workplace events or exposures, including but not limited to: accidents,
exposure to toxic materials or harmful physical agents, intentional
acts of violence, or naturally occurring events such as a tornado or
earthquake." The American Petroleum Institute (API) (Ex. 15: 375)
objected to this proposed sentence describing the various examples of
injury and illness causality, stating:

To help the system have much-needed credibility, "regardless of
fault or preventability" should not be applied beyond reasonable
limits. Specifically, it shouldn't mean "tornado or earthquake" or
other sudden, unforeseen catastrophic events over which the employer
clearly could not have any control. Employers can, however, exercise
control to prevent injury from some types of naturally occurring
events. The terms "tornado or earthquake" should be replaced with
more reasonable examples.

In the final rule, OSHA has decided to eliminate the sentence of
examples to make the regulatory text clearer and more concise. However,
OSHA notes that many circumstances that lead to a recordable
work-related injury or illness are "beyond the employer's control," at
least as that phrase is commonly interpreted. Nevertheless, because
such an injury or illness was caused, contributed to, or significantly
aggravated by an event or exposure at work, it must be recorded on the
OSHA form (assuming that it meets one or more of the recording criteria
and does not qualify for an exemption to the geographic presumption).
This approach is consistent with the no-fault recordkeeping system OSHA
has adopted, which includes work-related injuries and illnesses,
regardless of the level of employer control or non-control involved.
The issue of whether different types of cases are deemed work-related
under the OSHA recordkeeping rule is discussed in the Legal Authority
section, above, and in the work-relationship section (section 1904.5) of
this preamble.

In a comment on proposed paragraph (a), the National Association of
Manufacturers (NAM) (Exs. 25, 15: 305) argued that the OSHA
recordkeeping system should only collect information on

"the most significant hazards, those that lead to the most
significant injuries and illnesses * * *" and that the purpose
paragraph of the final rule be revised to state "The purpose of
this Part is to require employers to record and report disabling,
serious and significant work-related injuries and illnesses, and
work-related fatalities."

OSHA does not agree with this interpretation of the OSH Act. As
discussed in the Legal Authority section, above, Congress stated
clearly that the OSHA recordkeeping system was intended to capture
"work-related deaths, injuries and illnesses, other than minor
injuries requiring only first aid treatment and which do not involve
medical treatment, loss of consciousness, restriction of work or
motion, or transfer to another job" (§ 8(c)(2)) (emphasis added).
The words "disabling, serious, and significant," suggested by NAM,
are at variance with Congress' clear intent. OSHA concludes that the
guidance given by Congress -- that employers should record and report on
work-related deaths, and on injuries and illnesses other than minor
injuries, establishes the appropriate recording threshold for cases
entered into the OSHA recordkeeping system.

A few commenters recommended that OSHA delete paragraph (c) of the
proposed Purpose section (see, e.g., Exs. 25, 15: 305, 346, 348, 420),
and in the final rule, OSHA has done so because the paragraph merely
attested to OSHA's cooperation with other agencies on this rule.
Although the rule has, in fact, been developed in cooperation with the
Department of Health and Human Services, and specifically with the
National Institute for Occupational Safety and Health (NIOSH), there is
no need to include this information in the regulatory text itself.

Subpart B. Scope

The coverage and partial exemption provisions in Subpart B of the
final rule establish which employers must keep OSHA injury and illness
records at all times, and which employers are generally exempt but must
keep records under specific circumstances. This subpart contains
sections 1904.1 through 1904.3 of the final rule.

OSHA's recordkeeping rule covers many employers in OSHA's
jurisdiction but continues to exempt many employers from the need to
keep occupational injury and illness records routinely. This approach
to the scope of the rule is consistent with that taken in the former
recordkeeping rule. Whether a particular employer must keep these
records routinely depends on the number of employees in the firm and on
the Standard Industrial Classification, or SIC code, of each of the
employer's establishments. Employers with 10 or fewer employees are not
required to keep OSHA records routinely. In addition, employers whose
establishments are classified in certain industries are not required to
keep OSHA records under most circumstances. OSHA refers to
establishments exempted by reason of size or industry classification as
"partially exempt," for reasons explained below.

The final rule's size exemption and the industry exemptions listed
in non-mandatory Appendix A to Subpart B of the final rule do not
relieve employers with 10 or fewer employees or employers in these
industries from all of their recordkeeping obligations under 29 CFR
Part 1904. Employers qualifying for either the industry exemption or
the employment size exemption are not routinely required to record
work-related injuries and illnesses occurring to their employees, that
is, they are not normally required to keep the OSHA Log or OSHA Form
301. However, as sections 1904.1(a)(1) and 1904.2 of this final
recordkeeping rule make clear, these employers must still comply with
three discrete provisions of Part 1904. First, all employers covered by
the Act must report work-related fatalities or multiple
hospitalizations to OSHA under § 1904.39. Second, under
§ 1904.41, any employer may be required to provide occupational
injury and illness reports to OSHA or OSHA's designee upon written
request. Finally, under § 1904.42, any employer may be required to
respond to the Survey of Occupational Injuries and Illnesses conducted
by the Bureau of Labor Statistics (BLS) if asked to do so. Each of
these requirements is discussed in greater detail in the relevant
portion of this summary and explanation.

In § 1904.1 of the final rule, OSHA has retained the former
rule's size-based exemption, which exempts employers with 10 or fewer
employees in all industries covered by OSHA from most recordkeeping
requirements. Section 1904.1, "Partial exemption for employers with 10
or fewer employees," states that:

(a) Basic requirement.

(1) If your company had ten (10) or fewer employees at all times
during the last calendar year, you do not need to keep OSHA injury
and illness records unless OSHA or the BLS informs you in writing
that you must keep records under § 1904.41 or § 1904.42.
However, as required by § 1904.39, all employers covered by the
OSH Act must report to OSHA any workplace incident that results in a
fatality or the hospitalization of three or more employees.

(2) If your company had more than ten (10) employees at any time
during the last calendar year, you must keep OSHA injury and illness
records unless your establishment is classified as a partially
exempt industry under § 1904.2.

(b) Implementation.

(1) Is the partial exemption for size based on the size of my
entire company or on the size of an individual business
establishment?

The partial exemption for size is based on the number of
employees in the entire company.

(2) How do I determine the size of my company to find out if I
qualify for the partial exemption for size?

To determine if you are exempt because of size, you need to
determine your company's peak employment during the last calendar
year. If you had no more than 10 employees at any time in the last
calendar year, your company qualifies for the partial exemption for
size.

The Size-Based Exemption in the Former Rule

The original OSHA injury and illness recording and reporting rule
issued in July 1971 required all employers covered by the OSH Act to
maintain injury and illness records. In October 1972, an exemption from
most of the recordkeeping requirements was put in place for employers
with seven or fewer employees. In 1977, OSHA amended the rule to exempt
employers with 10 or fewer employees, and that exemption has continued
in effect to this day. All employers, however, have always been
required to report fatalities and catastrophes to OSHA and to
participate in the BLS survey, if requested to do so.

As discussed in the Legal Authority section of this preamble, the
10 or fewer employee threshold is consistent with Congressional intent:
the 1977 Federal Register notice announcing the new exemption cited the
Department of Labor appropriations acts for fiscal years 1975 and 1976,
which exempted employers having 10 or fewer employees from most routine
recordkeeping requirements, and Section 8(d) of the Act, as the major
reasons for raising the exemption size threshold from seven to 10
employees. The 1977 Notice stated that the new size threshold appropriately
balanced the interest of small businesses while preserving the essential
purposes of the recordkeeping scheme:

The [exemption] has been carefully designed to carry out the
mandate of section 8(d) without impairing the Act's basic purpose.
Thus, the [exemption] will not diminish the protections afforded
employees under the Act because all employers * * * remain subject
to the enforcement provisions of the Act. The [exemption] will
continue to require * * * small employers * * * to report fatalities
and multiple hospitalizations and to participate in the BLS annual
survey when selected to do so (42 FR 38568 (July 29, 1977)).

The Size-Based Exemption in the Final Rule

The final rule published today maintains the former rule's partial
exemption for employers in all covered industries who have 10 or fewer
employees. Under the final rule (and the former rule), an employer in
any industry who employed no more than 10 employees at any time during
the preceding calendar year is not required to maintain OSHA records of
occupational illnesses and injuries during the current year unless
requested to do so in writing by OSHA (under § 1904.41) or the BLS
(under § 1904.42). If an employer employed 11 or more people at a
given time during the year, however, that employer is not eligible for
the size-based partial exemption.

The Size-Based Exemption in the Proposed Rule

In the 1996 proposal, OSHA contemplated raising the threshold for
the size-based exemption to 19 employees for all employers except those
in the construction industry. In proposing this more extensive
exemption, OSHA stated that BLS Annual Survey data appeared to indicate
that small businesses in this size category had proportionately fewer
injuries and illnesses and were thus safer places to work. However,
since the proposal, OSHA has analyzed the record evidence on this point
and now believes that small businesses are not generally likely to be
less hazardous than larger businesses and, in fact, are likely, as a
general matter, to be more hazardous than large businesses. OSHA's
reasoning is described below.

Comments to the record make clear that the recording of fewer
injuries and illnesses by very small firms could have many causes other
than a lower level of hazards. For example, the National Institute for
Occupational Safety and Health (NIOSH) submitted a comment to the
record that described numerous studies based on fatality and workers'
compensation data that suggest that smaller businesses are at least as
hazardous as larger businesses (Ex. 15: 407). NIOSH also argued that
the BLS estimated injury and illness incidence rates for small
employers may be erroneously low, i.e., may be the result of
underreporting rather than a lower injury rate. The following comment
from NIOSH explains these concerns:

From a public standpoint, NIOSH does not support a partial
exemption from recordkeeping requirements for employers in the
construction industry with 10 or fewer employees, and non-construction
employers with 19 or fewer employees. Research
indicates significant safety and health problems in "small"
establishments which employ a substantial proportion of the
workforce. One-quarter of the civilian, full-time workforce is
employed in establishments with fewer than 25 employees (Oleinick et
al. 1995).

The Occupational Safety and Health Administration (OSHA) notes
[in the proposal to the recordkeeping rule] that "the Annual Survey
data show that small employers generally experience much lower
patterns of injuries and illnesses than medium size firms."
However, recent literature comparing Annual Survey data and workers
compensation data questions the validity of the estimated rates for
small employers obtained through the Bureau of Labor Statistics
(BLS) Annual Survey. Moreover, fatal and nonfatal work injuries are
a significant risk among small businesses in hazardous industries
and many industries with high fatal and nonfatal injury rates are
comprised primarily of small companies. In addition, NIOSH research
indicates that small companies have less access to safety and health
programs that might reduce injuries and illnesses than larger
companies [NIOSH 1988a].

Though the Annual Survey of Occupational Injuries and Illnesses
has consistently reported that employers with fewer than 20
employees have significantly lower rates of injuries and illnesses,
there is concern that these low incidence rates are an artifact of
the reporting system. Analysis of compensable injuries with >7
missed workdays in Michigan indicates that the pattern of lower
injury rates among small employers is not consistent across industry
divisions. Though the services and trade industry divisions show a
marked decline in compensable injury rate for small size firms, the
higher risk industries of construction and transportation/utilities
show relatively little decline in the compensable injury rate for
employers with fewer than 25 employees. Comparison of the
demographic characteristics of the Michigan work force with the
demographic characteristics of injured workers suggest that high
risk groups (e.g., males, younger workers [<35 years of age],
construction, manufacturing, transportation, and blue collar
workers) are over-represented among workers injured in small size
firms (<25 workers). Using cumulative lost work time as a surrogate
for severity of injury, the Michigan study also found that with one
exception (construction), compensable injuries to workers in small
firms were at least as serious as compensable injuries in larger
firms [Oleinick et al. 1995] (Ex. 15: 407).

Since publication of the recordkeeping proposal, OSHA has done
considerable research into the issue of fatality, injury, and illness
rates in small companies. The results of this research also point to
underreporting, rather than safer workplaces, as a likely reason for
the lower-than-average injury and illness numbers reported by small
employers. The most telling evidence that injury and illness
underreporting is prevalent among small firms is the substantial
discrepancy between the fatality rates in these firms and their injury
and illness rates.

Most professionals agree that occupational fatality data are more
reliable than occupational injury and illness data, primarily because
fatalities are more likely to be reported than injuries. The
work-related BLS fatality data appear to confirm this belief, showing that
although businesses with fewer than 10 employees account for only 4% of
the total workforce, they account for 28% of occupational fatalities.
Furthermore, although businesses with fewer than 20 employees comprise
only 26% of the total workforce, they account for 36% of all
occupational fatalities (see Mendeloff, "Using OSHA Accident
Investigations to Study Patterns in Work Fatalities," J. Occup. Med
32: 1117, 1119 (1990) (Ex. 15: 407 F)). These data strongly suggest
that very small businesses are disproportionately hazardous places to
work.

Many safety and health professionals also believe that injuries and
illnesses are substantially underreported by small employers (see,
e.g., Exs. 4, 5, 15: 407). However, the occupational injury and illness
data reported by employers to the BLS in connection with its Annual
Survey of Occupational Injuries and Illnesses show lower rates of
injuries and illnesses for firms in the smallest size classes than for
those in larger classes. In an effort to understand why smaller firms
might have lower injury and illness incidence rates, the authors of one
study found that: (1) occupational fatality rates were highest in
businesses with fewer than 50 employees; (2) businesses with fewer than
50 employees were least likely to have occupational health services
available; and (3) lost workday injury rates in several major industry
categories are highest (i.e., the injuries are most severe) in these
facilities. From these findings, the authors concluded:

It is difficult to imagine a set of workplace conditions in
small establishments that would lead simultaneously to lower injury
rates, higher fatality rates, and equal, or greater, injury severity
measured by missed work time, especially since these establishments
were less likely to provide injury prevention and safety services
(Oleinick et al., "Establishment Size and Risk of Occupational
Injury," Am. J. Med. 28(1): 2-3 (1995) (Ex. 15: 407 N)).

After considering a number of explanations that might explain this
apparent incongruity, these authors rejected all explanations except
one -- underreporting by small firms:

With the rejection of alternative explanations, there is a
strong likelihood of underreporting as the explanation, and we
estimate that the annual [BLS] survey substantially undercounts
injuries in small establishments (Oleinick et al., 1995 (Ex. 15: 407
N)).

NIOSH agrees, noting that "recent literature comparing Annual
Survey data and workers compensation data questions the validity of the
estimated rates for small employers obtained through the BLS Annual
Survey" (Ex.15: 407). Thus, the apparent discrepancy between the high
fatality rate in the smallest firms (i.e., those with fewer than 20
employees) and the low rates of injuries and illnesses reported by
those same firms is likely to be the result of underreporting rather
than lower relative hazards.

A Wall Street Journal (Feb. 3, 1994) computer analysis of more than
500,000 Federal and State safety-inspection records came to the same
conclusions, i.e., that employees of small businesses are at greater
risk of exposure to workplace hazards than employees of larger
businesses, and that BLS data for small firms seriously understate
injuries and illnesses in such firms. From 1988 through 1992, the
analysis found an incidence of 1.97 deaths per 1,000 workers at
workplaces with fewer than 20 employees, compared with an incidence of
just 0.004 deaths per 1,000 workers at workplaces with more than 2,500
workers. Thus, an employee's risk of death was approximately 500 times
higher at the smallest businesses compared with the risk at the largest
businesses. Similarly, while one in six employees at small businesses
worked in an area cited for a serious safety violation, only one in 600
did so at the largest businesses. This means that employees in small
businesses are 100 times more likely to be exposed to a serious hazard
at work than those in the largest businesses, a finding that is
consistent with the higher fatality rates in very small workplaces
(Wall Street Journal, February 3, 1994).

In the final rule, OSHA has decided to continue the Agency's
longstanding practice of partially exempting employers with 10 or fewer
employees from most recordkeeping requirements, but not to extend the
exemption to non-construction businesses with 19 or fewer employees, as
was proposed. OSHA has determined that increasing the number of
employers partially exempted is not in the best interests of the safety
and health of their employees. First, as NIOSH's comments (Ex. 15:
407), the Oleinick et al. study (1995), the Mendeloff article (1990),
and the Wall Street Journal study (1994) all indicate, businesses with
20 or fewer employees tend to be relatively hazardous places to work,
and their employees have a disproportionately high risk of work-related
death. Second, as NIOSH and others point out, there is reason to
believe that these very small workplaces also experience
disproportionately high numbers of injuries and illnesses, and that the
BLS statistics for these workplaces substantially underreport the
extent of job-related incidents at these establishments (Ex. 15: 407,
Oleinick et al. 1995, Wall Street Journal 1994 (Ex. 15: 407 N).
Finally, under the 10 or fewer employee partial exemption threshold,
more than 80% of employers in OSHA's jurisdiction are exempted from
routinely keeping records. Increasing the threshold for the size
exemption would deprive even more employers and employees of the
benefits of the information provided by these injury and illness
records and reduce the number of establishments where the records can
be of use to the government during an on-site visit. OSHA also believes
that keeping the OSHA Log and Incident Report is important for national
statistical purposes.

Size Exemption Threshold for Construction Companies

The final rule also retains the former rule's size exemption
threshold (10 or fewer employees) for construction employers. OSHA
proposed separate size thresholds for construction and nonconstruction
firms, i.e., the Agency proposed to exempt firms in construction with
10 or fewer employees and non-construction firms with 19 or fewer
employees from routine recordkeeping requirements. Comments on this
aspect of the proposal were mixed. Some commenters agreed that OSHA
should continue the exemption for construction employers with ten or
fewer employees (see, e.g., Exs. 15: 145, 170, 197, 288). Other
commenters urged that employers in the construction industry not be
exempted from recordkeeping at all (see, e.g., Exs. 15: 62, 74, 414).
For example, Robert L. Rowan, Jr. stated that:

[s]mall contractors often lack adequate safety knowledge, programs
and safeguards to prevent injuries and illnesses. I believe that
data obtained from these small contractors will point to a trend
that these employees have a relatively high frequency of injuries
that are related to tasks involving construction work such as
excavations and fall hazards. I suggest that there be no exemptions
for recordkeeping for any construction employer (Ex. 15: 62).

Other commenters asked OSHA to use a single size threshold for
employees in all industries and to raise the size exemption threshold
to more than 19 employees across the board (see, e.g., Exs. 15: 67,
304, 312, 344, 437). For example, the Sheet Metal and Air Conditioning
Contractors' National Association (SMACNA) remarked:

The recordkeeping standard is considered to be a horizontal
standard, which by definition, means that it covers all industries.
SMACNA members own and operate sheet metal fabrication shops where
they design and create the products which are then installed in the
construction process, including duct work and all types of specialty
and architectural sheet metal. Sheet metal fabrication shops fall
under the manufacturing classification and are therefore subject to
general industry standards. SMACNA contractors also construct with
the components that they fabricate. Therefore, as contractors they
must also comply with the OSHA standards for construction.

OSHA's arbitrary two tier record keeping requirement will cause
confusion among SMACNA contractors as to which classification they
are under and when they have to maintain records. With the volumes
of regulations that contractors already must comply with, it is only
logical that if OSHA truly wishes to simplify its recordkeeping
requirements it would create a uniform standard for all industries.
* * *

SMACNA urges OSHA to create a uniform horizontal standard and
increase the exemption for the construction industry to cover
employers with 19 or fewer employees (Ex. 15: 116).

After a review of the record and reconsideration of this issue,
OSHA agrees that there should be only one size exemption threshold
across all industries and finds that the threshold should be 10 or
fewer employees. This threshold comports both with longstanding Agency
practice and Congressional intent. Further, as discussed above, OSHA
finds that extending this threshold to include firms with 11 to 19
employees is not warranted by the evidence. Firms in this size range
have a disproportionately large number of fatalities, and their
lower reported injury and illness rates are likely to be the result of
underreporting rather than fewer hazards. Thus, companies in this size
class need the information their OSHA records provide to improve
conditions in their workplaces and to protect their employees from
job-related injuries, illnesses, and deaths. Likewise, OSHA does not
believe that it would be appropriate to remove the partial exemption
for construction employers with 10 or fewer employees, as some
commenters suggested (see, e.g., Exs. 15: 67, 304, 312, 344, 437).
Using the same size threshold for all OSHA-covered industries also
makes the rule simpler and is more equitable from industry to industry.

ASSE supports exempting businesses under twenty (20) employees
from the standard with some specific industry exemptions. Enforcing
this regulation for businesses of less than twenty (20) employees
would be detrimental to small business from the recordkeeping/
bureaucracy perspective, and may not generate any significant data.
ASSE wishes to clarify, however, that this position should not be
interpreted to mean that small businesses should be exempted from
safety and health laws. We believe that all employees are entitled
to an equal level of safety and health regardless of the size of
their place of employment. Exempting a paperwork requirement does
not change this level of commitment (Ex. 15: 182).

Two commenters suggested that OSHA use an even higher threshold for
determining the size-based exemption (Exs. 15: 357, 408). The Synthetic
Organic Chemical Manufacturers Association (SOCMA) stated "* * * SOCMA
believes that OSHA should modify the small employer exemption by
increasing it to 40 employees. This alternative approach would reduce
the employer paperwork burden while improving the accuracy of injury
and illness information" (Ex. 15:357). Similarly, the American Dental
Association (ADA) commented "The ADA suggests that OSHA expand the
proposed exemption from 'fewer than 20 employees' to 'fewer than 25
employees.' This would bring the small-employer exception into
conformity with many federal and state employment laws. It would also
serve as a more reasonable dividing line between small employers and
others" (Ex. 15:408).

Some commenters, however, objected to OSHA's proposed exemption of
employers in the 11 to 20 employee size range (see, e.g., Exs. 15:62,
369, 379, 407, 415, 418). Among these was the International Brotherhood
of Teamsters (IBT), which stated:

IBT maintains the importance of recording of all occupational
injuries and illnesses. For that same reason, International
Brotherhood of Teamsters does not support increasing the trigger for
non-construction employers from ten to nineteen employees. Although
injuries due to preventable causes occur in all types and sizes [of
businesses], a disproportionately high number of fatalities occur in
the smallest businesses. According to an analysis of BLS and OSHA
data, then assistant secretary of labor, Joe Dear, told the House of
Representative's Small Business Committee, "Businesses with fewer
than eleven workers account for 33 percent of all fatalities even
though they account for less than 20 percent of employees."
According to a study by the National Federation of Independent
Businesses, "generally businesses with fewer employees do less to
improve safety than those with more." Large corporations can afford
the full-time services of a safety engineer and industrial
hygienist, whereas often small firms cannot. IBT contends that it is
up to OSHA to protect the workers and institute prevention measures.
The use of required recordkeeping of data helps to reach that aim by
providing hard data. If the data is going to be used as a prevention
tool, it must be collected from the entire workforce not just a
subgroup (Ex. 15:369).

Reliance on a single size exemption threshold also addresses the point
made by SMACNA: that many small employers perform construction work and
also manufacture products and would therefore be uncertain, if the rule
contained two size exemption thresholds, as to whether they are
required to keep records or not.

OSHA's proposed rule stated that the size exemption would apply to
employers based on the number of employees employed by the employer
"for the entire previous calendar year." The Office of Advocacy of
the Small Business Administration (SBA) observed (Ex. 15:67, p. 4) that
this statement could be interpreted in various ways, and expressed
concern that it could be taken to refer to the total number of
employees who had been employed at one time or another during the year
rather than the total employed at any one time of the year. The SBA
office recommended that OSHA provide clearer guidance. OSHA agrees with
the SBA that the proposed regulatory language was ambiguous.
Accordingly, the final rule clarifies that the 10 or fewer size
exemption is applicable only if the employer had fewer than 11
employees at all times during the previous calendar year. Thus, if an
employer employs 11 or more people at any given time during that year,
the employer is not eligible for the small employer exemption in the
following year. This total includes all workers employed by the
business. All individuals who are "employees" under the OSH Act are
counted in the total; the count includes all full time, part time,
temporary, and seasonal employees. For businesses that are sole
proprietorships or partnerships, the owners and partners would not be
considered employees and would not be counted. Similarly, for family
farms, family members are not counted as employees. However, in a
corporation, corporate officers who receive payment for their services
are considered employees.

Consistent with the former rule, the final rule applies the size
exemption based on the total number of employees in the firm, rather
than the number of employees at any particular location or
establishment. Some commenters suggested that the size exemption should
be based on the number of employees in each separate establishment
rather than the entire firm (see, e.g., Exs. 15: 67, 201, 437). For
example, Caterpillar Inc. (Ex. 15: 201) noted:

We do object to the note to [proposed] paragraph 1904.2(b)(2)
which bases size exemptions on the total number of employees in a
firm rather than the establishment size. Size exemptions must be
based upon individual establishment size. The factors that make
recordkeeping difficult and unproductive for small facilities are
not eliminated by adding small facilities together. Small facilities
are usually unique and adding together the injury and illness
experience of different small facilities will not produce a valid
database for accident analysis or accident prevention planning.
Injury and illness data collection is difficult because of small
facility size and lack of recordkeeping expertise and resources. The
benefits of collecting information in small facilities does not
justify the costs. It is illogical to base the size exemption on
anything other than the size of each separate establishment.

OSHA does not agree with this comment because the resources
available in a given business depend on the size of the firm as a
whole, not on the size of individual establishments owned by the firm.
In addition, the analysis of injury records should be of value to the
firm as a whole, regardless of the size of individual establishments.
Further, an exemption based on individual establishments would be
difficult to administer, especially in cases where an individual employee,
such as a maintenance worker, regularly reports to work at several
establishments.

Section 1904.2 of the final rule partially exempts employers with
establishments classified in certain lower-hazard industries. The final
rule updates the former rule's listing of partially exempted lower-hazard
industries. Lower-hazard industries are those Standard
Industrial Classification (SIC) code industries within SICs 52-89 that
have an average Days Away, Restricted, or Transferred (DART) rate at or
below 75% of the national average DART rate. The former rule also
contained such a list based on data from 1978-1980. The final rule's
list differs from that of the former rule in two respects: (1) the
hazard information supporting the final rule's lower-hazard industry
exemptions is based on the most recent three years of BLS statistics
(1996, 1997, 1998), and (2) the exception is calculated at the 3-digit
rather than 2-digit level.

The changes in the final rule's industry exemptions are designed to
require more employers in higher-hazard industries to keep records all
of the time and to exempt employers in certain lower-hazard industries
from keeping OSHA injury and illness records routinely. For example,
compared with the former rule, the final rule requires many employers
in the 3-digit industries within retail and service sector industries
that have higher rates of occupational injuries and illnesses to keep
these records but exempts employers in 3-digit industries within those
industries that report a lower rate of occupational injury and illness.
Section 1904.2 of the final rule, "Partial exemption for
establishments in certain industries," states:

(a) Basic requirement.

(1) If your business establishment is classified in a specific
low hazard retail, service, finance, insurance or real estate
industry listed in Appendix A to this Subpart B, you do not need to
keep OSHA injury and illness records unless the government asks you
to keep the records under § 1904.41 or § 1904.42. However, all
employers must report to OSHA any workplace incident that results in
a fatality or the hospitalization of three or more employees (see
§ 1904.39).

(2) If one or more of your company's establishments are
classified in a non-exempt industry, you must keep OSHA injury and
illness records for all of such establishments unless your company
is partially exempted because of size under § 1904.1.

(b) Implementation.

(1) Does the partial industry classification exemption apply
only to business establishments in the retail, services, finance,
insurance or real estate industries (SICs 52-89)?

(2) Is the partial industry classification exemption based on
the industry classification of my entire company or on the
classification of individual business establishments operated by my
company?

The partial industry classification exemption applies to
individual business establishments. If a company has several
business establishments engaged in different classes of business
activities, some of the company's establishments may be required to
keep records, while others may be exempt.

(3) How do I determine the Standard Industrial Classification
code for my company or for individual establishments?

You determine your Standard Industrial Classification (SIC) code
by using the Standard Industrial Classification Manual, Executive
Office of the President, Office of Management and Budget. You may
contact your nearest OSHA office or State agency for help in
determining your SIC.

Employers with establishments in those industry sectors shown in
Appendix A are not required routinely to keep OSHA records for their
establishments. They must, however, keep records if requested to do so
by the Bureau of Labor Statistics in connection with its Annual Survey
(section 1904.42) or by OSHA in connection with its Data Initiative
(section 1904.41). In addition, all employers covered by the OSH Act
must report a work-related fatality, or an accident that results in the
hospitalization of three or more employees, to OSHA within 8 hours
(section 1904.39).

In 1982, OSHA exempted establishments in a number of service,
finance and retail industries from the duty to regularly maintain the
OSHA Log and Incident Report (47 FR 57699 (Dec. 28, 1982)). This
industry exemption to the Part 1904 rule was intended to "reduce
paperwork burden on employers without compromising worker safety and
health."

The 1982 list of partially exempt industries was established by
identifying lower hazard major industry groups in the SIC Divisions
encompassing retail trade, finance, insurance and real estate, and the
service industries (SICs 52-89). Major industry groups were defined as
the 2-digit level industries from the SIC manual published by the U.S.
Office of Management and Budget (OMB). Industries in these major
industry groups were partially exempted from coverage by Part 1904 if
their average lost workday injury rate (LWDI) for 1978-80 was at or
below 75% of the overall private sector LWDI average rate for that
year. Industries traditionally targeted for OSHA enforcement (those in
SICs 01 through 51, comprising the industry divisions of agriculture,
construction, manufacturing, transportation and public utilities,
mining, and wholesale trade) remained subject to the full recordkeeping
requirements. Although the 1982 Federal Register notice discussed the
possibility of revising the exempt industry list on a routine basis,
the list of partially exempt industries compiled in 1982 has remained
unchanged until this revision of the Part 1904 rule.

The proposed rule would have updated the industry exemption based
on more current data, and would have relied on 3-digit SIC code data to
do so. The only change from the former rule taken in the proposal would
have been reliance on LWDI rates for industries at the 3-digit, rather
than 2-digit, level.

Evaluating industries at the 3-digit level allows OSHA to identify
3-digit industries with high LWDI rates (DART rates in the terminology
of the final rule) that are located within 2-digit industries with
relatively low rates. Conversely, use of this approach allows OSHA to
identify lower-hazard 3-digit industries within a 2-digit industry that
have relatively high LWDI (DART) rates. Use of LWDI (DART) rates at the
more detailed level of SIC coding increases the specificity of the
targeting of the exemptions and makes the rule more equitable by
exempting workplaces in lower-hazard industries and requiring employers
in more hazardous industries to keep records.

Under the proposal, based on their LWDI (DART) rates, the following
industries would have been required to keep records for the first time
since 1982:

SIC 553 Auto and Home Supply Stores

SIC 555 Boat Dealers

SIC 571 Home Furniture and Furnishings Stores

SIC 581 Eating Places

SIC 582 Drinking Places

SIC 596 Nonstore Retailers

SIC 598 Fuel Dealers

SIC 651 Real Estate Operators and Lessors

SIC 655 Land Subdividers and Developers

SIC 721 Laundry, Cleaning, and Garment Services

SIC 734 Services to Dwellings and Other Buildings

SIC 735 Miscellaneous Equipment Rental and Leasing

SIC 736 Personnel Supply Services

SIC 833 Job Training and Vocational Rehabilitation Services

SIC 836 Residential Care

SIC 842 Arboreta and Botanical or Zoological Gardens, and

SIC 869 Membership Organizations Not Elsewhere Classified

The following industries would have been newly exempted by the proposal:

In the Issues section of the preamble to the proposed rule, OSHA
asked the public to comment on the appropriateness of the proposed
exemption procedure, and on whether or not OSHA should expand this
approach to industries in SICs 01 through 51. The Agency also asked for
alternative approaches that would reduce employer paperwork burden
while retaining needed injury and illness information, and for
estimates of the costs and benefits associated with these alternatives.
OSHA notes that the final rule is based on the most recent data
available (1996-1998). Although it has relied on the methodologies
proposed (3-digit SIC codes, industries below 75% of the national
average LWDI rate), there have been a few shifts in the industries
proposed to be covered and those actually covered by the final rule.
Thus this final rule will continue to exempt eating and drinking places
(SICs 581 and 582) but will not exempt automobile parking (SIC 752).

Comments on the Proposed Industry Exemptions

A number of commenters supported OSHA's proposal to apply the 1982
exemption criteria to the service and retail industries at the three-digit SIC level (see, e.g., Exs. 27; 15: 26, 199, 229, 247, 272, 299,
359, 375, 378, 392). However, a number of commenters opposed any
exemptions from the Part 1904 requirements on the basis of industry
classification (see, e.g., Exs. 15: 9, 13, 31, 62, 78, 83, 129, 153,
154, 163, 186, 197, 204, 234, 350, 379, 399, 414). The International
Paper Company explained its reasons for opposing industry exemptions as
follows:

Exempting employers with low incidence rates is inconsistent
with a major objective of the recordkeeping rules; specifically,
measuring the magnitude of work-related injuries and illnesses.
Exemption of specific industrial classifications or small employers
may bias statistics which are used by OSHA for identifying
industries for inspections. These exemptions may also impact
statistics related to less traditional, but increasingly more
frequent exposures such as bloodborne pathogens, tuberculosis, motor
vehicle incidents or workplace violence.

Exempting employers with low incidence rates does not provide
any measurable relief from paperwork requirements. Time spent on
recordkeeping is primarily dedicated to decision making regarding
work relationship and recordability, not actual Log entries or
completing supplemental reports. Simplifying the decision making
process is the best way to reduce the burden of recordkeeping, not
exempting employers (Ex. 15:399).

The Service Employees International Union (SEIU) agreed:

Injury and illness recordkeeping is the most basic step an
employer must take in order to begin to address workplace hazards.
Responsible employers recognize that injury and illness records are
a useful tool for development of sound company safety and health
programs. This information is also critical to the workers
themselves, by raising awareness about how and where people are
getting hurt, they in turn use this information to work to eliminate
the causes of such injuries and illnesses. Therefore it is
disturbing that in the proposed revised standard, there still exist
industry exemptions for recordkeeping and reporting. Prior to 1983,
all employers covered by OSHA with more than ten employees were
required to maintain injury and illness records.

* * * SEIU believes that such exemptions are unwarranted and
violate the specific language of the Occupational Safety and Health
Act. * * * The Act does not provide for excluding entire classes of
occupationally injured and sick workers. Furthermore, little
recordkeeping will be required for industries that are safe and
experience low rates of injuries and illnesses. It is critical that
OSHA require recordkeeping for all industries, especially since many
previously exempt sectors now experience increasing rates of injury
and illness. Many of these industry sectors are also dramatically
expanding -- therefore, continued recordkeeping is even more critical
(Ex. 15:379).

The National Safety Council (Ex. 15:359) cautioned:

From the point of view of injury and illness prevention. * * *
an establishment that does not track its injury and illness
experience cannot effectively administer a prevention program. * * *

Although OSHA encourages employers to track the occupational
injuries and illnesses occurring among their employees and agrees that
doing so is important for safety and health prevention efforts, OSHA
has decided in the final rule to continue the long-established practice
of exempting employers in industries with lower average lost workday
incidence rates from most OSHA recordkeeping requirements but to tie
the exemption as closely as possible to specific 3-digit SIC code data.

Accordingly, non-mandatory Appendix A of the final rule identifies
industries for exemption at the 3-digit SIC code level. Although this
approach does make the list of exempt industries longer and more
detailed, it also targets the exemption more effectively than did the
former rule's list. For example, the final rule does not exempt firms
in many of the more hazardous 3-digit SIC industries that are embedded
within lower rate 2-digit SIC industries. It does, however, exempt
firms in relatively low-hazard 3-digit SIC industries, even though they
are classified in higher hazard 2-digit SIC industries. Where Days
Away, Restricted, or Transferred (DART, formerly LWDI) rate
calculations exempt all of the 3-digit SIC industries within a given 2-digit industry, the exempt industry list in Appendix A displays only
the 2-digit SIC classification. This approach merely provides a
shorter, simpler list.

For multi-establishment firms, the industry exemption is based on
the SIC code of each establishment, rather than the industrial
classification of a firm as a whole. For example, some larger
corporations have establishments that engage in different business
activities. Where this is the case, each establishment could fall into
a different SIC code, based on its business activity. The Standard
Industrial Classification manual states that the establishment, rather
than the firm, is the appropriate unit for determining the SIC code.
Thus, depending on the SIC code of the establishment, one establishment
of a firm may be exempt from routine recordkeeping under Part 1904,
while another establishment in the same company may not be exempt.

Several commenters suggested that OSHA use an alternate method for
determining exemptions (see, e.g., Exs. 15: 97, 201, 359). The National
Safety Council (Ex. 15: 359), for example, urged OSHA to "evaluate
other exemption procedures before incorporating one into proposed
section 1904.2."

OSHA has evaluated other approaches but has decided that the 3-digit
DART rate method is both simpler and more equitable than the
former 2-digit method. By exempting lower-hazard industry sectors
within SICs 52-89, OSHA hopes both to concentrate its recordkeeping
requirements in sectors that will provide the most useful data and to
minimize paperwork burden. No exemption method is perfect: any method
that exempts broad classes of employers from recordkeeping obligations
will exempt some more hazardous workplaces and cover some less
hazardous workplaces. OSHA has attempted to minimize both of these
problems by using the most current injury and illness statistics available,
and by applying them to a more detailed industry level within the retail,
financial and service sectors than was formerly the case. OSHA has also
limited the scope of the exemptions by using an exemption threshold that
is well below the national average, including only those industries that
have average DART rates that are at or below 75% of the national average
DART rate. The rule also limits the exempt industries to the retail,
financial and service sectors, which are generally less hazardous than the
manufacturing industry sector.

The Orlando Occupational Safety and Health Customer Council asked:
"What is the criteria for exemptions? For example, large auto dealers
who also perform auto repair work are exempt, while smaller auto repair
shops are not exempt. Why not classify the organization by the most
hazardous occupation [within that organization]?" (Ex. 15: 97).

In response to this query, OSHA notes that the exemption procedure
is reasonably straightforward, as the following example illustrates:
the automobile dealer industry is exempt because its DART rate, as
indicated by its average over three years of BLS data, is below 75% of
the national average rate. Automobile repair shops are not exempted,
however, because their rate is higher than the 75% cutoff. If OSHA were
to base its recordkeeping requirements on the most hazardous occupation
within a given industry, assuming that occupation-specific within-industry
injury and illness data were available, as this commenter
suggests, the number of establishments in individual industries that
would have to keep records would greatly increase. This is because even
relatively safe industries have some number of employees who engage in
relatively hazardous occupations. For example, workers who transport
currency, coins, and documents for banks and other financial
institutions are engaged in a fairly hazardous occupation. They may be
injured in many different ways, ranging from highway accidents, to
lifting of heavy parcels, to robberies. However, the experience of
these few employees within the industry does not accurately reflect the
relative degree of hazard confronting the vast majority of employees in
the financial industries. Although it is certainly not perfect, OSHA
believes that the BLS lost workday injury rate (DART rate) is a better
comparative statistic than the injury rate for a particular occupation
because it reflects the risk to the average worker within the
particular industry. Moreover, while it is relatively easy to classify
employees according to occupation, it is unclear how to classify
individual employers with regard to detailed occupation, and OSHA is
also not aware of data that would permit such classification.

The Caterpillar Corporation (Ex. 15: 201) suggested that OSHA
adjust the formula used to determine which industries are exempted:

You propose to base your exemption on achieving less than 75% of
the average private sector lost workday injury rate; however, we
would recommend expanding the size of the exemption to include all
industries below the private sector average. We have no objection to
your proposal to eliminate the "nesting" problem within 2-digit
SIC code groups, as long as the exemption size is maximized. The
recordkeeping paperwork burden for small and relatively safe
industries is significant and not justified based upon the benefits
received.

OSHA has decided in the final rule to continue to use a formula
that will exempt retail, finance and services industries from most
recordkeeping requirements if they have a Days Away, Restricted, or
Transferred (DART) rate that is at or below 75% of the national average
rate. OSHA believes that the 75% threshold will ensure that only
industries with relatively low injury and illness rates are exempted
from these requirements. Using the national average DART rate, rather
than 75% of the national DART rate, as the threshold for exemption
purposes would exempt employers whose industries were merely average in
terms of their DART rate.

OSHA received many comments from firms in industries that have been
exempt from most OSHA recordkeeping requirements since 1982 but that
would have been required by the proposed rule to keep records. Most of
these commenters opposed their industry's inclusion within the scope of
the proposed rule. For example, several commenters from the restaurant
industry objected to the fact that SICs 581 and 582, eating and
drinking places, would have been covered (see, e.g., Exs. 15: 3, 4, 5,
6, 7, 8, 12, 20, 22, 55, 96, 125, 202, 311). The National Restaurant
Association remarked:

The Association opposes elimination of this exemption on the
bases that:

-- the proposal, if promulgated, will cost eating and drinking
establishments an estimated $17 million in the first year alone;

-- the additional recordkeeping obligations under the proposed
rule duplicate data already available to OSHA from other sources;
and

-- the current data does not justify removal of the partial
recordkeeping exemption for eating and drinking establishments (Ex.
15: 96).

In the final rule, the exemption for eating and drinking places is
retained, because the recent data indicate that these industries have
DART rates that are below 75% of the national rate.

Two commenters addressed the proposed removal of the exemption for
SIC 553, auto and home supply stores (Ex. 15: 367, 402). For example,
the Automotive Parts and Accessories Association (APAA) stated:

The vast majority of auto parts stores are similar to other
retailers which would still be exempt under this proposal. * * *
[m]ore than three quarters of the automotive parts retailers which
are proposed to be saddled with the full Log requirements would have
little or no potential injury or illness experience to justify the
added mandate (Ex. 15: 367).

Several commenters discussed the proposed removal of the exemption
for SIC 721, laundry, dry cleaning and textile rental services (see,
e.g., Exs. 15: 183, 244, 326). Typical of the
views expressed by these commenters was the comment of the Textile
Rental Services Association of America (TRSA):

TRSA is strongly opposed to OSHA's proposal to eliminate the
partial exemption from recordkeeping and reporting requirements for
laundry, cleaning, and garments services for Standard Industrial
Classification (SIC) 721. TRSA believes that the proposed inclusion
of the textile rental industry is unjustified. Because the textile
rental industry has historically been proactive when it comes to
workplace safety and has been 75% below the industry average for
lost work days, we contend that OSHA's plan to eliminate the partial
exemption from injury/illness recordkeeping requirements is
unwarranted (Ex. 15: 183).

The National Association of Home Builders (NAHB) commented on the
proposed inclusion in the recordkeeping system of a variety of
industries closely associated with the home building industry:

As a result of using a 3 digit Standard Industrial
Classification (SIC), "Real Estate Offices" (SIC 651) will now be
required to report and record injury and illness data if they have
more than 19 workers during the year. A cursory analysis of the
hazards associated with real estate offices seems to indicate
limited exposure to high hazards (Ex. 15: 323).

The primary arguments put forth by these commenters are as follows:
(1) The occupational injury and illness data collected under Part 1904
are available to OSHA from other sources; (2) OSHA's data requirements
are burdensome; (3) the use of even more current data would change the
list of exempted industries; and (4) some of the individual industries
that would be covered are relatively safe.

In response, OSHA notes that, although statistical information on
average work-related injury and illness rates in industries is
available from the BLS and other sources, information about the hazards
present at specific workplaces is not available to OSHA from those same
sources. OSHA recognizes that the maintenance of these records imposes
some burden on businesses in the form of paperwork. However, the
benefits of keeping records are also clearly substantial: informed
employers can use the data to provide greater protection for their
employees and to receive the benefits that accrue from prevention
efforts in the form of fewer injuries and illnesses. In addition, the
records are useful to OSHA in the inspection process. OSHA also
believes that the process for selecting exempt industries must be as
objective as possible, and that exemptions must rely upon timely and
objective information about the safety and health experience of a given
industry. The lost workday injury rates published by the Bureau of
Labor Statistics provide the most consistent and reliable nationwide
statistics available for this purpose, and OSHA is therefore relying on
these data. The 75% of the national rate cutoff strikes a reasonable
balance between collecting data likely to be useful and avoiding
unnecessary burden. OSHA has used the most recent data available at
this time in establishing the final list of partially exempt
industries. OSHA also has used data from a three-year period
(1996-1998) rather than a one-year period to reduce year-to-year variation in
the data.

Other commenters argued that their industry should not be exempt
because their workplaces continue to pose risk to the workers in them.
For example, the American Nurses Association (ANA) opposed the partial
exemption of doctor's offices and health services:

ANA urges OSHA to remember the purpose of the Act, to protect
the health and safety of ALL workers, when deliberating on exempting
employers from this standard. As stated before, health care workers
risk of exposure to injury and illness is not limited to one
setting. Therefore, the Standard Industrial Classifications (SICs)
801 Offices and Clinics of Doctors of Medicine and SIC 809
Miscellaneous Health and Allied Services should not be exempt from
this standard (Ex. 15: 376).

The International Brotherhood of Teamsters (IBT) also argued
against excluding certain health care service industries:

IBT has concerns when the use of this analysis will grant
partial exemptions to SIC codes 801 (offices and clinics of
doctors), 807 (medical and dental offices), and 809 (miscellaneous
health and allied services). All three of these SIC codes are
covered under other OSHA rules (such as the bloodborne pathogen
standard and ethylene oxide standard) and have medical surveillance
requirements to detect adverse health effects. OSHA should require
that these workplaces keep records of work related illnesses or
injuries that occur. Especially, since OSHA has already determined
that there is a significant risk of harm from exposures in these
workplaces (Ex. 15: 369).

OSHA recognizes that workers in establishments that are exempt
under the 75% DART rate criterion will continue to be exposed to job-related hazards and to experience workplace injuries and illnesses.
However, because these industries' overall injury rate is below the 75%
cutoff, they qualify for exemption, along with other financial, service
and retail industries that fall below that injury rate threshold.
Exemption of an industry on the basis of its lower-than-average DART
rate does not mean that all establishments within that industry have
such rates or that workers in that industry will not experience
injuries and illnesses. The 1904 partial exemption does not exempt
employers from any other OSHA regulation or standard, so employees in
these industries will continue to benefit from the protection offered
by the OSHA standards. For example, while doctors' and dentists'
offices are partially exempt under the 1904 regulation, they are still
required to comply with the OSHA Bloodborne Pathogens Standard (29 CFR
1910.1030). Use of the 75% criterion merely provides a cutoff point,
based on BLS injury and illness rates, for different industry sectors.
OSHA believes that it is appropriate to use the 75% cutoff point
because, in general, it is an appropriate overall indicator of the
relative hazard rank of an industry. OSHA recognizes that no average
across-establishment statistic can capture the injury and illness
experience of all occupations or establishments within that industry.

For some SIC codes, the BLS Annual Survey does not publish data at
the three-digit level. The survey is designed to provide data at the
four-digit level in the manufacturing industries and at the three-digit
level in all other industries, primarily because of budget constraints
that limit the amount of data the BLS can collect and process. However,
the survey has other publication criteria that make some of the data at
this detailed level unpublishable. Under the proposal, coverage would
have been based on the industry's LWDI rate. If a 3-digit sector did
not have published data, OSHA proposed to use the data for the two-digit industry group for that sector.

One 3-digit sector affected by this approach was dental offices
(SIC 802), which the proposal would have covered because the entire 2-digit health care sector has a relatively high injury and illness rate.
The American Dental Association (ADA) suggested that OSHA use an
alternative approach to exempt dentists from coverage rather than rely
on a strict data protocol for making the decision:

[d]ental offices are very much like physicians' offices in terms of
size, scope of activity, and degree of occupational health risk. For
purposes of this rulemaking, however, physicians' offices have been
granted a categorical exemption while dentists' offices (SIC Code
802) have not. Even dental laboratories (SIC Code 807) have been
granted a categorical exemption from this rule, although it is
unlikely that anyone would assert that dental laboratories are safer
and more healthful places to work than dental offices. The ADA is
unaware of any data suggesting that dental offices should be treated
differently than either physicians' offices or dental laboratories
(Ex. 15: 408).

The more recent data published by the BLS for the years 1996, 1997,
and 1998 include specific estimates of the injury and illness
experience for SIC 802 (dental offices) in that period. The dental
office industry experienced a 3-year average rate of days away,
restricted, or transferred injuries of 0.2 per 100 workers in those
years, a rate well below 75% of the national average. Therefore, the
final rule exempts employers classified in SIC 802 from routine
recordkeeping requirements.

The proposed rule would have removed SIC 736 (personnel supply
services) from the list of exempted industry sectors; however, because
this industry's more recent average DART (formerly LWDI) rate (for the
years 1996, 1997, and 1998, the base years OSHA is using to determine
lower-hazard industry exemptions) is above 75% of the national average
cutoff, SIC 736 is not exempted under the final rule. The final rule
(see section 1904.31(b)(2)) requires the "using firm" to record the
injuries and illnesses of temporary workers that are "leased" from a
personnel supply service, providing that the using firm supervises
these workers on a day-to-day basis.

The National Association of Temporary and Staffing Services
commented on the proposed removal of the exemption for SIC 736:

The proposed rules also would lift the partial exemption for
employers classified under SIC Code 7363 (help supply services).
Those employers, among others, were exempted from injury and illness
record keeping requirements in 1982 because they had low work place
injury rates. The proposal to lift the exemption is based on
reported increased injury rates for these employers. However, since
records for the vast majority of staffing firm employees are
maintained by the worksite employer as explained above, the
practical effect of lifting the exemption for staffing firms would
be to require them to maintain records for their home office
clerical and administrative workers -- for whom there is no evidence
of increased work place illnesses or injuries. Hence, we urge OSHA
to retain the partial exemption for SIC 7363.

If the exemption is not retained in the case of SIC 7363
employers, it would be especially important for the final rules to
expressly provide, as set forth above, that there is no intent to
impose a dual reporting requirement. At least one state OSH office
already has construed the proposed lifting of the partial exemption
as creating an obligation on the part of staffing firms to maintain
records for all of its employees, including temporary employees
supervised by the worksite employer. This is clearly inconsistent
with the intent of the proposed rule and should be clarified (Ex.
15: 333).

The final rule makes clear that, when a "leased" or "temporary"
employee is supervised on a day-to-day basis by the using firm, the
using firm must enter that employee's injuries and illnesses on the
using firm's establishment Log and other records. Injuries and
illnesses occurring to a given employee should only be recorded once,
either by the temporary staffing firm or the using firm, depending on
which firm actually supervises the temporary employees on a day-to-day
basis. (see the discussion for § 1904.31, Covered employees, for an
in-depth explanation of these requirements.)

Some commenters suggested that OSHA should grant partial exemptions
to specific industries within SICs 01 through 51 (agriculture, forestry
and fishing; mining; construction; manufacturing; transportation,
communications, electric, gas and sanitary services; and wholesale
trade) that had lost workday incidence rates that were below 75% of the
average rate for all industries instead of limiting such exemptions to
industries in SICs 52-89 (see, e.g., Exs. 15: 77, 95, 184, 201, 357,
359, 374, 375). Typical of these comments was one from the Synthetic
Organic Chemical Manufacturers Association (SOCMA):

SOCMA believes that the partial exemption from recordkeeping
requirements should be consistent for all standard industrial
classifications. SOCMA supports the use of injury rates, rather than
SIC Codes, as a criterion for partial exemption from recordkeeping
requirements, provided the same criterion is applied to all work
sites. For example, if the performance measure was 75 percent of the
private sector average, then all industries with injury rates below
this average should be exempt.

There is sound basis for this shift in OSHA's approach. It has
been found in the past that some industries in partially exempt SIC
Codes 52 -- 89 have had high injury rates while some in the
"manufacturing" SIC Codes 01-51 have had low injury rates. This
has resulted in insufficient or unavailable injury and illness
information for some facilities in SIC Codes 52-89 with high injury
rates. Inspection resources are wasted if injury and illness
information is not available during the inspection of high injury
rate facilities. Conversely, requiring full recordkeeping for
facilities with low injury rates results in a facility wasting
resources on unnecessary recordkeeping. All businesses, regardless
of SIC Code, should be treated equally and should have the
opportunity to be exempt based on injury rates (Ex. 15: 357).

The National Automobile Dealers Association (NADA) urged OSHA to
exempt truck dealerships [classified in SIC 50], even though they are
considered wholesale rather than retail establishments, because of
their similarity to automobile dealerships [SIC 551], which are
exempted:

NADA strongly urges OSHA to exempt truck dealerships (SIC 5012),
the overwhelming majority of whom are small businesses as recognized
by the Small Business Administration (SBA).* * * A limited exemption
for truck dealerships is justified under the same criteria used for
automobile dealerships (Ex. 15: 280).

On the other hand, some commenters agreed with OSHA's proposal to
require all businesses in SICs 01-51 to keep injury and illness records
(see, e.g., Exs. 15: 170, 199, 369). The International Brotherhood of
Teamsters (IBT) remarked: "IBT does not support using the same
analysis of data at the three digit level of those industries in SIC 01
through 51 (industries historically not exempted from recordkeeping
requirements). IBT maintains the importance of recording of all
occupational injuries and illnesses" (Ex. 15: 369). A major utility,
New England Power, agreed: "We believe that the existing exemption
criteria for SICs 52-89 should remain the same. Although many
industries would fall within the exemption criteria in SICs 01-51, they
are still higher hazard industries producing valuable data on injury/
illness experience" (Ex. 15: 170). The NYNEX Corporation also agreed
with OSHA's proposed approach:

We are not in favor of extending the concept of industry-wide
recordkeeping exemptions to the list of three digit codes in the
group 01-51 that were identified in the proposal. Even though these
groups have average injury and illness case rates that are less than
75% of the private sector average, the nature of the work operations
performed within these industries suggests that the variation above
and below average for individual establishments could be much
greater than with SIC Codes 52-89. An exemption for this group of
establishments could mask the existence of some very high case rates
within this group (Ex. 15: 199).

After a review of the recent BLS data, OSHA's own experience, and
the record of this rulemaking, OSHA has decided that it is appropriate
to require firms in industries within the SIC 01 through 51 codes to
comply with OSHA's requirements to keep records. Thus, the final rule,
like the proposed rule and the rule published in 1982, does not exempt
firms with more than 10 employees in the industry divisions of
agriculture, mining, construction, manufacturing, wholesale trade,
transportation and public utilities (SICs 01 -- 52) from routine
recordkeeping.

Although OSHA no longer restricts its inspection targeting schemes
to employers in these SICs, these industries have traditionally been,
and continue to be, the focus of many of the Agency's enforcement
programs. OSHA believes that it is important for larger employers
(i.e., those with more than 10 employees) in these industries to
continue to collect and maintain injury and illness records for use by
the employer, employees and the government. As noted in the comments
there is a wide variation in injury/illness rates among establishments
classified in these industries. Further, as a whole, these industries
continue to have injury and illness rates that are generally higher
than the private sector average and will thus benefit from the
information that OSHA-mandated records can provide about safety and
health conditions in the workplace. In 1998, the lost workday injury
and illness rate for the entire private sector was 3.1. As can be seen
in the following table of lost workday injury and illness rates by
industry division, all of the covered divisions exceeded 75% of the
national average LWDI rate (2.325) for the private sector as a whole,
while the exempted industry divisions had substantially lower rates.

The problems that may be encountered by exempting additional
industries are exemplified by an analysis of the petrochemical industry
and the manufacturers of chemicals and petroleum products, classified
in SICs 28 and 29. If the industry exemption were applied to these
industries, injury and illness records would not be required for highly
specialized plants that make industrial inorganic chemicals, plastics
materials and synthetic resins, pharmaceuticals, industrial organic
chemicals, and petroleum refineries. These industries have relatively
low occupational injury and illness rates, but they are not truly
low-hazard industries. All of these facilities make, use and handle highly
toxic chemicals and consequently have the potential for both acute
overexposure and chronic exposures of their employees to these
substances. These industries, for example, are the industries to which
OSHA health standards, such as the benzene, ethylene oxide, and
methylene chloride standards, apply. Because occupational illnesses,
particularly chronic illnesses, are notoriously underreported (see,
e.g., Exs. 15: 407, 4, 5), the LWDI rates for these industries do not
accurately reflect the level of hazard present in these facilities. In
addition, these types of facilities are prone to major safety and
health problems, including explosions, toxic releases and other events
that often lead to fatalities and serious injuries. The safety and
health problems of these facilities are not limited to workers, but
extend to hazards posed to the general public. In addition, OSHA
frequently inspects these facilities because of their potential for
catastrophic releases, fires, and explosions, and the Part 1904 injury
and illness records have been extremely useful for this purpose.

The Agency finds that continuing, and improving on, the Agency's
longstanding approach of partially exempting those industries in SIC
codes 52-89 that have DART rates, based on 3 years of BLS data, below
75% of the private-sector average strikes the appropriate balance
between the need for injury and illness information on the one hand,
and the paperwork burdens created by recording obligations, on the
other. The BLS Annual Survey will, of course, continue to provide
national job-related statistics for all industries and all sizes of
businesses. As it has done in the past, the BLS will sample employers
in the partially exempt industries and ask each sampled employer to
keep OSHA records for one year. In the following year, BLS will collect
the records to generate estimates of occupational injury and illness
for firms in the partially exempt industries and size classes, and
combine those data with data for other industries to generate estimates
for the entire U.S. private sector. These procedures ensure the
integrity of the national statistics on occupational safety and health.

The list of partially exempted industry sectors in this rule is
based on the current (1987) revision of the SIC manual. The Office of
Management and Budget (OMB) is charged with maintaining and revising
the system of industrial classification that will replace the SIC. The
new system is used by U.S. statistical agencies (including the BLS).
Under the direction of OMB, the U.S. government has adopted a new,
comprehensive system of industrial classification that will replace the
SIC. The new system is called the North American Industrial
Classification System (NAICS). NAICS will harmonize the U.S.
classification system with those of Canada and Mexico and make it
easier to compare various economic and labor statistics among the three
countries. Several commenters expressed concern about this change in
industrial classification systems (see, e.g., Exs. 15: 70, 182, 183,
379). For example, the American Society of Safety Engineers (ASSE)
stated:

The Society is concerned with the recent Office of Management
Budget (OMB), proposal to change the Economic Classification Policy
from the Standard Industrial Classification System to the North
American Industry Classification System. We recommend that OSHA
study what the effect would be of promulgating a new regulation
partially based on SIC codes when these codes could be potentially
replaced/revised with a new classification system (Ex. 15: 182).

Although the NAIC industry classification system has been formally
adopted by the United States, the individual U.S. statistical agencies
(including the BLS) are still converting their statistical systems to
reflect the new codes and have not begun to publish statistics using
the new industry classifications. The new system will be phased into
the nation's various statistical systems over the next several years.
The BLS does not expect to publish the first occupational injury and
illness rates under the new system until the reference year 2003. Given
the lag time between the end of the year and the publication of the
statistics, data for a full three-year period will not be available
before December of 2006.

Because data to revise the Part 1904 industry exemption based on
the NAIC system will not be available for another five years, OSHA has
decided to update the industry exemption list now based on the most
recent SIC-based information available from BLS for the years 1996,
1997 and 1998. OSHA will conduct a future rulemaking to update the
industry classifications to the NAIC system when BLS publishes injury
and illness data that can be used to make appropriate industry-by-industry decisions.

The proposal inquired whether OSHA should adopt a procedure for
adjusting the industry exemption lists as the injury and illness rates
of various industries change over time. A number of commenters urged
OSHA to update the exemption list periodically (see, e.g., Exs. 15: 27,
87, 170, 181, 199, 272, 280, 359, 374, 375, 392, 407). Some commenters
suggested various time periods, such as annually (Ex. 15: 374), every 3
years (see, e.g., Exs. 15: 87, 181, 199, 407), every 5 years (see,
e.g., Exs. 15: 170, 181, 262, 272, 359, 375), or every 5 to 10 years
(Ex. 15: 392). Southwestern Bell Telephone suggested that the list
should be modified whenever changes in the injury and illness rates
warrant a change (Ex. 15: 27). In the opinion of the National Safety
Council, "How often the SIC exemption should be updated depends on how
well and how quickly OSHA can communicate changes in the exempt
industry list to those affected. The Council recommends updating the
list every 3 to 5 years" (Ex. 15: 280).

Several commenters, however, opposed frequent updating of the SIC
exemption list. For example, the Orlando Safety and Health Customer
Council stated: "Changes to SIC exemptions should be limited to a
minimum of every 5 years. This would reduce confusion" (Ex. 15: 97).
The National Institute for Occupational Safety and Health (NIOSH)
generally opposed industry exemptions but recommended that, if they
were continued, they be updated as follows:

If OSHA continues to provide this exemption for low injury rate
SICs, NIOSH recommends that the list of partially exempt SICs be placed
in an Appendix. Because the injury and illness experience of an industry
can change over time (e.g., SIC 58 and SIC 84 had injury rates at or
below 75% of the private sector average in 1983, but above 75% of
the private sector average in 1990 and 1992), OSHA should
periodically review and modify the list of partially exempt
industries. NIOSH recommends that the criteria for partial
exemptions be placed in the regulatory text, while placing the list
of partially exempt industries in an Appendix as noted so that the
list could be updated periodically by administrative means rather
than by changing the regulation. In addition to the partial
exemption criteria, the regulatory text should specify the interval
(in years) for reviewing and revising the list of those industries
that qualify. NIOSH recommends an interval of 3 years for the review
and revision process (Ex. 15: 407).

OSHA agrees with those commenters who favored regular updating of
the SIC code exemption list. For the list to focus Agency resources
most effectively on the most hazardous industries, it must be
up-to-date. Industries that are successful in lowering their rates to levels
below the exemption threshold should be exempted, while those whose
rates rise sufficiently to exceed the criterion should receive
additional attention. Unfortunately, the change in industry coding
systems from the Standard Industrial Classification (SIC) system to the
North American Industry Classification (NAIC) system will require a
future rulemaking to shift to that system. Therefore, there is no value
in adding an updating mechanism at this time. The automatic updating
issue will be addressed in the same future rulemaking that addresses
the NAIC system conversion.

Partial Exemptions for Employers Under the Jurisdiction of OSHA-Approved State Occupational Safety and Health Plans

Robert L. Rowan, Jr. expressed a concern that the OSHA State-Plan
States could have differing industry exemptions from those applying to
federal OSHA states, commenting:

In regard to the note in OSHA's Coverage and Exemption Table
that "some states with their own occupational safety and health
programs do not recognize the federal record keeping exemptions". I
am deeply concerned. I would prefer that all jurisdictions enforce
the same requirements. This will be confusing and create needless
problems for businesses with sites in numerous states if
requirements are not enforced equally (Ex. 15: 62).

For those States with OSHA-approved State plans, the state is
generally required to adopt Federal OSHA rules, or a State rule that is
at least as effective as the Federal OSHA rule. States with approved
plans do not need to exempt employers from recordkeeping, either by
employer size or by industry classification, as the final Federal OSHA
rule does, although they may choose to do so. For example, States with
approved plans may require records from a wider universe of employers
than Federal OSHA does. These States cannot exempt more industries or
employers than Federal OSHA does, however, because doing so would
result in a State rule that is not as effective as the Federal rule. A
larger discussion of the effect on the State plans can be found in
Section VIII of this preamble, State Plans.

Recordkeeping Under the Requirements of Other Federal Agencies

Section 1904.3 of the final rule provides guidance for employers
who are subject to the occupational injury and illness recording and
reporting requirements of other Federal agencies. Several other Federal
agencies have similar requirements, such as the Mine Safety and Health
Administration (MSHA), the Department of Energy (DOE), and the Federal
Railroad Administration (FRA). The final rule at section 1904.3 tells
the employer that OSHA will accept these records in place of the
employer's Part 1904 records under two circumstances: (1) if OSHA has
entered into a memorandum of understanding (MOU) with that agency that
specifically accepts the other agency's records, the employer may use
them in place of the OSHA records, or (2) if the other agency's records
include the same information required by Part 1904, OSHA would consider
them an acceptable substitute.

OSHA received very few comments on the issue of duplicate
recordkeeping under different agency rules. The Fertilizer Institute
(TFI) recommended that OSHA make the data mandated by OSHA and MSHA
more consistent (Ex. 15:154). However, MSHA and OSHA have different
recordkeeping requirements because the agencies' mandate and uses of
the data differ. The approach OSHA takes in the final rule, which is to
continue to accept data kept by employers under other Federal
requirements if the two federal agencies have made an agreement to do
so, or if the data are equivalent to the data required to be kept by
Part 1904, appears to be the best way to handle the problem raised by
the TFI.

Subpart C. Recordkeeping Forms and Recording Criteria

Subpart C of the final rule sets out the requirements of the rule
for recording cases in the recordkeeping system. It contains provisions
directing employers to keep records of the recordable occupational
injuries and illnesses experienced by their employees, describes the
forms the employer must use, and establishes the criteria that
employers must follow to determine which work-related injury and
illness cases must be entered onto the forms. Subpart C contains
sections 1904.4 through 1904.29.

Section 1904.4 provides an overview of the requirements in Subpart
C and contains a flowchart describing the recording process. How
employers are to determine whether a given injury or illness is work-related is set out in section 1904.5. Section 1904.6 provides the
requirements employers must follow to determine whether or not a work-related injury or illness is a new case or the continuation of a
previously recorded injury or illness. Sections 1904.7 through 1904.12
contain the recording criteria for determining which new work-related
injuries and illnesses must be recorded on the OSHA forms. Section
1904.29 explains which forms must be used and indicates the
circumstances under which the employer may use substitute forms.

Section 1904.4 Recording Criteria

Section 1904.4 of the final rule contains provisions mandating the
recording of work-related injuries and illnesses that must be entered
on the OSHA 300 (Log) and 301 (Incident Report) forms. It sets out the
recording requirements that employers are required to follow in
recording cases.

Paragraph 1904.4(a) of the final rule mandates that each employer
who is required by OSHA to keep records must record each fatality,
injury or illness that is work-related, is a new case and not a
continuation of an old case, and meets one or more of the general
recording criteria in section 1904.7 or the additional criteria for
specific cases found in sections 1904.8 through 1904.12. Paragraph (b)
contains provisions implementing this basic requirement.

Paragraph 1904.4(b)(1) contains a table that points employers and
their recordkeepers to the various sections of the rule that determine
which work-related injuries and illnesses are to be recorded. These
sections lay out the requirements for determining whether an injury or
illness is work-related, if it is a new case, and if it meets one or
more of the general recording criteria. In addition, the table contains
a row addressing the application of these and additional criteria to
specific kinds of cases (needlestick and sharps injury cases,
tuberculosis cases, hearing loss cases, medical removal cases, and
musculoskeletal disorder cases). The table in paragraph 1904.4(b)(1)
is intended to guide employers through the recording process and to act
as a table of contents to the sections of Subpart C.

Paragraph (b)(2) is a decision tree, or flowchart, that shows the
steps involved in determining whether or not a particular injury or
illness case must be recorded on the OSHA forms. It essentially
reflects the same information as is in the table in paragraph
1904.4(b)(1), except that it presents this information graphically.

The former rule had no tables or flowcharts that served this
purpose. However, the former Recordkeeping Guidelines (Ex. 2) contained
several flowcharts to help employers make decisions and understand the
overall recording process. The proposed rule included a flowchart as
Appendix C to Part 1904 -- Decision Tree for Recording Occupational
Injuries and Illnesses. OSHA received very few comments in response to
proposed Appendix C, and no commenters objected to the decision tree
concept. The commenters who discussed the decision tree supported it,
and many suggested that it should be incorporated into the computer
software OSHA develops to assist employers with keeping the records
(see, e.g., Exs. 51, 15: 38, 67, 335, 407, 438).

In the final rule, OSHA has decided to include the flowchart
because of its usefulness in depicting the overall recording process.
OSHA has not labeled the flowchart non-mandatory, as some commenters
(see, e.g., Ex. 15: 335) suggested, because the recording of injuries
and illnesses is a mandatory requirement and labeling the flowchart as
non-mandatory could be confusing.

Section 1904.5 Determination of Work-Relatedness

This section of the final rule sets out the requirements employers
must follow in determining whether a given injury or illness is
work-related. Paragraph 1904.5(a) states that an injury or illness must be
considered work-related if an event or exposure in the work environment
caused or contributed to the injury or illness or significantly
aggravated a pre-existing injury or illness. It stipulates that, for
OSHA recordkeeping purposes, work relationship is presumed for such
injuries and illnesses unless an exception listed in paragraph
1904.5(b)(2) specifically applies.

Implementation requirements are set forth in paragraph (b) of the
final rule. Paragraph (b)(1) defines "work environment" for
recordkeeping purposes and makes clear that the work environment
includes the physical locations where employees are working as well as
the equipment and materials used by the employee to perform work.

Paragraph (b)(2) lists the exceptions to the presumption of work-relatedness permitted by the final rule; cases meeting the conditions
of any of the listed exceptions are not considered work-related and are
therefore not recordable in the OSHA recordkeeping system.

This section of the preamble first explains OSHA's reasoning on the
issue of work relationship, then discusses the exceptions to the
general presumption and the comments received on the exceptions
proposed, and then presents OSHA's rationale for including paragraphs
(b)(3) through (b)(7) of the final rule, and the record evidence
pertaining to each.

Section 8(c)(2) of the OSH Act directs the Secretary to issue
regulations requiring employers to record "work-related" injuries and
illnesses. It is implicit in this wording that there must be a causal
connection between the employment and the injury or illness before the
case is recordable. For most types of industrial accidents involving
traumatic injuries, such as amputations, fractures, burns and
electrocutions, a causal connection is easily determined because the
injury arises from forces, equipment, activities, or conditions
inherent in the employment environment. Thus, there is general
agreement that when an employee is struck by or caught in moving
machinery, or is crushed in a construction cave-in, the case is
work-related. It is also accepted that a variety of illnesses are associated
with exposure to toxic substances, such as lead and cadmium, used in
industrial processes. Accordingly, there is little question that cases
of lead or cadmium poisoning are work-related if the employee is
exposed to these substances at work.

On the other hand, a number of injuries and illnesses that occur,
or manifest themselves, at work are caused by a combination of
occupational factors, such as performing job-related bending and
lifting motions, and factors personal to the employee, such as the
effects of a pre-existing medical condition. In many such cases, it is
likely that occupational factors have played a tangible role in causing
the injury or illness, but one that cannot be readily quantified as
"significant" or "predominant" in comparison with the personal
factors involved.

Injuries and illnesses also occur at work that do not have a clear
connection to a specific work activity, condition, or substance that is
peculiar to the employment environment. For example, an employee may
trip for no apparent reason while walking across a level factory floor;
be sexually assaulted by a co-worker; or be injured accidentally as a
result of an act of violence perpetrated by one co-worker against a
third party. In these and similar cases, the employee's job-related
tasks or exposures did not create or contribute to the risk that such
an injury would occur. Instead, a causal connection is established by
the fact that the injury would not have occurred but for the conditions
and obligations of employment that placed the employee in the position
in which he or she was injured or made ill.

The theory of causation OSHA should require employers to use in
determining the work-relationship of injuries and illnesses was perhaps
the most important issue raised in this rulemaking. Put simply, the
issue is essentially whether OSHA should view cases as being
work-related under a "geographic" or "positional" theory of causation,
or should adopt a more restrictive test requiring that the occupational
cause be quantified as "predominant," or "significant," or that the
injury or illness result from activities uniquely occupational in
nature. This issue generated substantial comment during this
rulemaking, and the Agency's evaluation of the various alternative
tests, and its decision to continue its historic test, are discussed
below.

The final rule's test for work-relationship and its similarity
to the former and proposed rules. -- The final rule requires that
employers consider an injury or illness to be "work-related" if an
event or exposure in the work environment either caused or
contributed to the resulting condition or significantly aggravated a
pre-existing injury or illness. Work relatedness is presumed for
injuries and illnesses resulting from events or exposures occurring
in the work environment, unless an exception in § 1904.5(b)(2)
specifically applies.

Under paragraph 1904.5(b)(1), the "work environment" means "the
establishment and other locations where one or more employees are
working or are present as a condition of their employment. The work
environment includes not only physical locations, but also equipment or
materials used by the employee during the course of his or her work."

The final rule's definition of work-relationship is essentially the
same as that in both the former and proposed rules except for the final
rule's requirement that the work event or exposure "significantly"
aggravate a pre-existing injury or illness. The Guidelines interpreting
the former rule stated that

Work-relationship is established under the OSHA recordkeeping
system when the injury or illness results from an event or exposure
in the work environment. The work environment is primarily composed
of: (1) The employer's premises, and (2) other locations where
employees are engaged in work-related activities or are present as a
condition of their employment. (Ex. 2 at p. 32).

The proposed rule also contained a similar definition of "work-related" and "work environment." The only significant difference
between the proposed and the final rule definitions is that the
proposed rule also would not have required a "significant"
aggravation of a pre-existing condition before it became recordable;
under the proposal, any aggravation would have been sufficient (see 61
FR 4059).

The Alternative Tests for Work-Relationship

Although OSHA proposed to continue its existing definition of work-relationship, it sought comment on the following three alternative
tests:

1. Exclude cases with any evidence of non-work etiology. Only cases
where the work event or exposure was the sole causative factor would be
recorded;

2. Record only cases where work was the predominant causative
factor;

3. Record all cases where the work event or exposure had any
possibility of contributing to the case (emphasis added). (61 FR 4045)

Comments on the "Quantified Occupational Cause" Test

The first two alternative tests described in the proposal would
have required the employer to quantify the contribution of occupational
factors as compared to that of personal factors. These tests are
referred to in the Legal Authority section, and in this preamble, as
the "quantified occupational cause" tests. Of these tests,
Alternative 2 -- record only injuries and illnesses predominantly caused
by occupational factors -- received the most comment. Typical of these
comments were those of the Dow Chemical Company, which expressed the
view of many in industry that "[a] system that labels an injury or
illness attributable to the workplace even though the workplace
contribution may be insignificant does not lead to an effective,
credible or accurate program" (Ex. 15: 335). Other commenters stated
that recording only those cases where work was the predominant cause
would improve the system by focusing attention on cases that are
amenable to employer abatement (see, e.g., Exs. 22, 15: 13, 27, 34, 38,
52, 60, 69, 71, 72, 82, 97, 102, 108, 109, 122, 136, 137, 141, 146,
147, 149, 152, 154, 159, 163, 169, 171, 174, 176, 181, 197, 198, 199,
200, 201, 214, 218, 224, 230, 231, 238, 239, 260, 262, 265, 266, 272,
273, 277, 278, 287, 288, 290, 297, 301, 302, 303, 307, 313, 317, 318,
330, 335, 346, 352, 353, 370, 375, 382, 378, 383, 384, 386, 388, 396,
401, 402, 404, 405, 425, 426, 430).

Some commenters (see, e.g., Exs. 15: 185, 199, 205, 332, 338, 349,
354, 358, 375, 421, 440) offered a slight modification on Alternative
2. They suggested that using a term other than predominant, such as
"substantial" or "significant," would avoid the need to define
"predominant" as a percentage. For example, United Technologies (Ex.
15: 440) opposed "placing a percentage on the degree of contribution"
because doing so would not be practical. Further, according to this
commenter, "work relationship should be established in cases where the
workplace contributed substantially to the injury or illness, as
determined by an occupational physician." Arguing along the same
lines, the American Petroleum Institute (API) (Ex. 15: 375) stated that
it supported "in principle the work-relatedness concept presented by
OSHA as Alternative 2, but feels "predominant" might be too difficult
to administer as a fundamental criterion. API proposes that
work-relatedness should exist when an event or exposure in the workplace is
a significant factor resulting in an injury or illness. * * *"
Organization Resource Counselors, Inc. (Ex. 15: 358) added: "[T]he
Congressional intent in drafting these sections was to require the
collection of work-related information about significant work-related
injuries and illnesses." The General Electric Company (Ex. 15: 349)
said that "OSHA needs to allow the facility the flexibility to record
only those cases that are "more likely than not" related to workplace
exposure or tasks. This determination can be made during the incident
investigation. A good test of work-relatedness is whether the injury
would have been prevented by full compliance with the applicable OSHA
standard."

Proposed Alternative 1, which would have required the recording
only of cases where work was the sole cause, was also supported by a
large number of commenters (see, e.g., Exs. 15: 9, 39, 87, 95, 119,
123, 145, 151, 152, 179, 180, 183, 185, 204, 205, 225, 229, 234, 242,
259, 263, 269, 270, 304, 341, 363, 377, 389, 393, 414, 433, 443).
Typical of this view was the comment of the American Health Care
Association (Ex. 15: 341):

If OSHA's primary concern is to address those workplace hazards
or risks that cause or may cause employee injury/illness then the
agency should confine recordability to those injuries and illnesses
that are directly caused by a workplace event or exposure. This
approach, in turn, will focus the employer's attention on those
unsafe workplace conditions that need to be corrected to protect all
workers exposed to or at risk from the unsafe conditions.

The National Federation of Independent Business (Ex. 15: 304)
supported Alternative 1 "because under such a system evidence of
non-work-related factors is excluded thus the decision-making process is
dramatically simplified and the tally is very credible." The Painting
and Decorator Contractors of America (Ex. 15: 433) added: "[T]his
approach is also consistent with OSHA's intent (and the Congressional
mandate in the Paperwork Reduction Act of 1995) to reduce compliance
burdens as this would be the simplest method for employers to apply."

Comments on the "Unique Occupational Activities" Test

Some commenters favored a closely related test for work
relationship that would place primary emphasis on the nature of the
activity that the employee was engaged in when injured or made ill.
This test is referred to the Legal Authority section and in this
preamble section as the "unique occupational activities" test. Its
supporters argued that whether an injury or illness occurs or manifests
itself at work is less important than whether or not the harm has been
caused by activities or processes peculiar to the workplace. The AISI
argued that:

[I]t is clear that Congress intended OSHA's authority to
regulate to be limited to "occupational hazards" and conceived of
such hazards as "processes and materials" peculiar to the
workplace. * * * Congress did not give OSHA the authority to
regulate hazards if they "grow out of economic and social factors
which operate primarily outside the workplace. The employer neither
controls nor creates these factors as he controls or creates work
processes and materials." Congress was concerned with dangerous
conditions peculiar to the workplace; it did not have in mind the
recording of illnesses simply because they appear at work (internal
citations omitted) (Ex. 15: 395).

Dow Chemical made a similar point in arguing that the criteria for
determining work-relationship should include whether the activity the
employee was engaged in at the time of the injury or onset of illness
was for the direct benefit of the employer or was a required part of
the job (Ex. 15: 335B). According to Dow, the activity-based test would
be more accurate than the geographic presumption (OSHA's historic test)
because it would omit injuries due to hazards beyond the employer's control:

Examples to illustrate this point include the employee who
during his break attempts to remove a plastic insert in a condiment
container with a knife and ends up cutting himself which requires
three stitches. This activity, while it happened on company grounds,
was not for the direct benefit of the company nor a requirement of
his job, and there was no way for the employer to prevent it (Ex.
15: 335B).

Comments on OSHA's Historical Test

A significant number of commenters supported OSHA's long-standing
test in which work factors must be a cause, but not necessarily a
"significant" or "predominant" cause, and a geographic presumption
applies if "events or exposures" in the work environment either
caused or contributed to the resulting condition, or aggravated a pre-existing condition (see, e.g., Exs. 15: 74, 153, 362, 369, 394, 407,
418, 429). For example, NIOSH (Ex. 15: 407) favored this approach
because "[o]verreported cases can be identified and accounted for in
data analysis, in contrast to the other alternatives which stress
specificity at the expense of sensitivity and would result in
unreported cases." The AFL-CIO argued that:

* * * [c]apturing all workplace illnesses and injuries, even
those for which the predominant cause cannot be proven to be work-related, can lead to early recognition of problems and abatement of
hazardous conditions. Our experience has shown us that when
comprehensive records of all possible cases are kept, patterns of
injury and illness emerge, enabling us to target problem areas/
factors that previously may not have been associated with that
specific work environment. The inclusion of all cases will lead to
prevention strategies that can reduce the risk of serious illness
and injury to workers. Inclusion of all cases that have a workplace
link will also assist in the recognition of diseases that are caused
by synergistic effects. (Ex. 15: 418)

The American Industrial Hygiene Association (AIHA) argued that
continuing OSHA's historic approach to work-relationship is
particularly important in the case of occupational illnesses because:

Occupational illnesses differ from injuries in that minor or
early symptoms of illness are often an important indicator of a more
serious disease state, while a minor injury usually goes away
without further developments. By the time serious disabling symptoms
have surfaced. a disease may be very far progressed and
irreversible. Training courses such as Hazard Communication are
geared toward educating the workforce to recognize and report
symptoms of overexposure, presumably for disease prevention. AIHA
does not want this information to be de-emphasized or lost (Ex. 15:
153).

Comments on the "Mere Possibility" Test

Alternative 3 described in the proposal would have required that an
injury or illness be considered work related "if the worker ever
experienced a workplace event or exposure that had any possibility of
playing a role in the case." This "mere possibility" test is
substantially different than OSHA's historical definition of work-relationship,
which required that the injury or illness have a tangible
connection with the work environment. Although some commenters
supported Alternative 3, apparently on the assumption that it was in
fact OSHA's proposed definition, analysis of these comments suggests
that the parties involved recognized that an injury must have a real,
not merely theoretical, link to work to be work-related. No commenter
suggested a rationale for recording cases having only a theoretical or
speculative link to work.

OSHA's Reasons for Rejecting the Alternative Tests for work-relationship

OSHA has given careful consideration to all of the comments and
testimony received in this rulemaking and has decided to continue to
rely in the final rule on the Agency's longstanding definition of work-relationship,
with one modification. That modification is the addition
of the word "significantly" before "aggravation" in the definition
of work-relatedness set forth in final rule section 1904.5. The
relevant portion of the section now states "an injury or illness is to
be considered work-related if an event or exposure in the work
environment either caused or contributed to the injury or illness or
significantly aggravated a pre-existing injury or illness" (emphasis
added).

In the final rule, OSHA has restated the presumption of work-relationship
to clarify that it includes any non-minor injury or
illness occurring as a result of an event or exposure in the work
environment, unless an exception in paragraph 1904.5(b)(2) specifically
applies. OSHA believes that the final rule's approach of relying on the
geographic presumption, with a limited number of exceptions, is more
appropriate than the alternative approaches, for the following reasons.

The Geographic Presumption Is Supported by the Statute

One important distinction between the geographic test for causation
and the alternative causation tests is that the geographic test treats
a case as work-related if it results in whole or in part from an event
or exposure occurring in the work environment, while the alternative
tests would only cover cases in which the employer can determine the
degree to which work factors played a causal role. Reliance on the
geographic presumption thus covers cases in which an event in the work
environment is believed likely to be a causal factor in an injury or
illness but the effect of work cannot be quantified. It also covers
cases in which the injury or illness is not caused by uniquely
occupational activities or processes. These cases may arise, for
example, when: (a) an accident at work results in an injury, but the
cause of the accident cannot be determined; (b) an injury or illness
results from an event that occurs at work but is not caused by an
activity peculiar to work, such as a random assault or an instance of
horseplay; (c) an injury or illness results from a number of factors,
including both occupational and personal causes, and the relative
contribution of the occupational factor cannot be readily measured; or
(d) a pre-existing injury or illness is significantly aggravated by an
event or exposure at work.

As discussed in the Legal Authority section, the statute's language
and the Legislative History support a definition of work-relationship
that encompasses all injuries and illnesses resulting from harmful
events and exposures in the work environment, not only those caused by
uniquely occupational activities or processes. A number of commenters
acknowledged the broad purposes served by OSHA's recordkeeping
requirements and urged continued reliance on the former rule's
definition of "work-related" (see, e.g., Exs. 15: 65, 198, 350, 369,
418). For example, the AFL-CIO noted, "[o]ur experience has shown us
that when comprehensive records of all possible cases are kept,
patterns of injury and illness emerge, enabling us to target problem
areas/factors that previously may not have been associated with that
specific work environment" (Ex. 15: 418) (emphasis added).

On the other hand, those commenters favoring the "quantified
occupational cause" test or the "unique occupational activity" test
maintained that injury and illness records have more limited functions.
Some commenters argued that because OSHA's mission is to
eliminate preventable occupational injuries and illnesses, the
determination of work-relationship must turn on whether the case could
have been prevented by the employer's safety and health program. The
Dow Chemical Company expressed this view as follows:

[T]he goal of this recordkeeping system should be to accurately
measure the effectiveness of safety and health programs in the
workplace. Activities where safety and health programs could have no
impact on preventing or mitigating the condition should not be
logged and included in the Log and Summary nor used by OSHA to
determine its inspection schedule. If the event was caused by
something beyond the employer's control it should not be considered
a recordable event that calls into question a facility's safety and
health program.

. . . Credibility in this regulation rests on whether the
recorded data accurately reflects the safety and health of the
workplace. Including events where the workplace had virtually no
involvement undermines the credibility of the system and results in
continued resistance to this regulation (Ex. 15: 335B).

The law firm of Constangy, Brooks and Smith, LLC, urged OSHA to
adopt the proposal's second alternative ("predominant cause") because
cases that are "predominantly caused by workplace conditions" are the
ones most likely to be preventable by workplace controls. Their comment
stated, "[s]ince OSHA's ultimate mission is the prevention of
workplace injuries and illnesses, it is reasonably necessary to require
recording only when the injury or illness can be prevented by the
employer" (Ex. 15-345). Other commenters opposed the recording of
cases in which the injury or illness arises while the employee is on
break, in the rest room, or in storage areas located on the employer's
premises. These commenters claimed that use of the geographic
presumption results in recording many injuries and illnesses that have
little or no relationship to the work environment (see, e.g., Exs. 15:
231, 423, 424G).

OSHA believes that the views of Dow Chemical and others in support
of the proposal's alternative tests for work-relationship reflect too
narrow a reading of the purposes served by the OSHA injury and illness
records. Certainly, one important purpose for recordkeeping
requirements is to enable employers, employees, and OSHA to identify
hazards that can be prevented by compliance with existing standards or
recognized safety practices. However, the records serve other purposes
as well, including providing information for future scientific research
on the nature of causal connections between the work environment and
the injuries and illnesses sustained by employees. For example, the
records kept by employers under Part 1904 produced useful data on
workplace assaults and murders, which has permitted OSHA, employers,
and others to focus on the issue of violence in the workplace. This has
led, in turn, to efforts to reduce the number of such cases by
implementing preventive measures. Although this issue was not
anticipated by the 1904 system, the broad collection of injury, illness
and fatality data allowed useful information to be extracted from the
1904 data. As discussed in the Legal Authority section, these purposes
militate in favor of a general presumption of work-relationship for
injuries and illnesses that result from events or exposures occurring
in the work environment, with exceptions for specific types of cases
that may safely be excluded without significantly impairing the
usefulness of the national job-related injury and illness database.

At the same time, OSHA is sensitive to the concerns of some
commenters that the injury and illness records are perceived as a
measure of the effectiveness of the employer's compliance with the Act
and OSHA standards. OSHA emphasizes that the recording of an injury or
illness on the Log does not mean that a violation has occurred. The
explanatory materials accompanying the revised OSHA Forms 300 and 301
contain the following statement emphasizing this point: "Cases listed
on the Log of Work-Related Injuries and Illnesses are not necessarily
eligible for Workers Compensation or other insurance benefits. Listing
a case on the Log does not mean that the employer or worker was at
fault or that an OSHA standard was violated."

The Alternative Tests for Work-Relationship Will Likely Lead Both to
Inconsistent Determinations and to Underreporting of Cases

Under the first two alternative tests for work-relationship
described in the proposal, the decision on work-relationship would
depend upon the degree to which the injury or illness resulted from
distinctly occupational causes. Whether labeled "sole cause,"
"predominant cause," or "significant cause," these alternative
tests would require the employer, in each case, to distinguish between
the occupational and non-occupational causal factors involved, and to
weigh the contribution of the occupational factor or factors. Requiring
the occupational cause to be quantified in this way creates practical
problems militating against the use of these alternative tests in the
final recordkeeping rule.

The most serious problem is that there is no reliable, objective
method of measuring the degree of contribution of occupational factors.
The absence of a uniform methodology for assessing the extent of work
contribution caused several industry commenters to endorse the former
rule's position on work-relationship. For example, the American
Automobile Manufacturers Association (AAMA) noted that an ideal system
would focus on cases in which the work environment was a major
contributor to the injury or illness. Nevertheless, the AAMA argued
against adopting the predominant cause test, stating: "until a system
is developed in which employers can measure objectively and
consistently whether or not the work environment is a major contributor
to a workplace injury or illness, we favor continuing the definition of
work-relationship as it currently exists" (Ex. 15: 409). The Ford
Motor Co. also argued in favor of continuing the existing definition:

Ford feels that the work environment should be a major
contributor to an injury or illness for the case to be considered
work-related. However, we are unsure how employers can measure
objectively, consistently and equally whether the work environment
is a major contributor. The use of a checklist by a health care
provider to determine whether the work environment was a major
contributor for a case to be considered work-related would be overly
burdensome and subjective. Until a system is developed by which
employers can measure objectively, consistently and equally whether
or not the work environment is a major contributor to a workplace
injury or illness, we favor continuing the definition of work
relationship as it currently exists (Ex. 15: 347).

Based on a review of the record, OSHA agrees with those commenters
who supported a continuation of the Agency's prior practice with regard
to reliance on the geographic presumption for determinations of work-relatedness.
OSHA finds that this approach, which includes all cases
with a tangible connection with work, better serves the purposes of
recordkeeping. Accordingly, the final rule relies on the geographic
presumption, with a few limited exceptions, as the recordkeeping
system's test for work-relationship.

Who Makes the Determination?

In addition to the definition of work-relatedness, commenters
addressed the issue of who should make the determination of work-relatedness
in a given case (see, e.g., Exs. 15: 27, 35, 102, 105, 127,
193, 221, 281, 305, 308, 324, 325, 341, 345, 347, 385, 387, 390, 392,
397, 420). Some commenters believed that a trained medical professional
should make this determination, while others argued that the employer
should make the ultimate decision about the work-relatedness of
occupational injuries and illnesses. Some supported the use of the
work-relatedness checklist for specific disorders included by OSHA in
the proposal. For example, the American Public Health Association (Ex.
15: 341) commented:

We also believe that work-relatedness should only be established
by the documented determination of a qualified health care provider
with specific training related to the type of case reported. OSHA's
checklist for determining work-relatedness. . . .should be used and
expanded to include potentially recordable cases, i.e., excluding
first aid treatment.

The Dow Corning Corporation (Ex. 15: 374) argued that the employer
should make the determination, albeit with the assistance of a health
care professional:

This assessment process should include interviews with
knowledgeable people regarding the duties and hazards of the
employee's job tasks in addition to the employee interview. If
inaccurate or misleading information is given to the health care
provider improper or inaccurate conclusions may be reached with
regard to the incident cause. A health care provider's assessment of
work-relationship is typically viewed as difficult to overcome, even
if it is made with incomplete information. We recommend that the
health care provider's checklist be used as only one input in the
work-relationship decision and that the final decision should still
rest with the employer.

Deere and Company (Ex. 15: 253) opposed leaving the determination
of work-relatedness to a health care professional:

We strongly disagree with any provision that would allow a
physician to make a final determination of work-relatedness. The
only time a physician should have any input into the actual
determination of work-relatedness is if they are knowledgeable of
the employer's workplace environment and the specific job tasks
performed by employees. Frequently, physicians will state that a
condition was caused by an employee's job without having any
knowledge of the specific tasks being performed by the employee.
This is an unacceptable usurpation of employers' rights and we
oppose any attempt to codify it in a federal regulation.

However, several participants opposed making any work-relatedness
checklist mandatory (such as the one OSHA proposed) (see, e.g., Exs.
15: 68, 170, 201, 283, 434). The American Trucking Association's
comment (Ex. 15: 397) was typical of this view:

We do not, however, support a requirement that employers must
use a mandatory checklist to determine work-relatedness. . . .
Because the checklist asks for medical information, the employer
would find itself in conflict with the confidentiality requirements
imposed under the Americans With Disabilities Act. 29 C.F.R.
§ 1630.14. Moreover, a mandatory checklist would be unnecessarily
time-consuming and subjective. Finally, we note that inclusion of
item 5(b), "possible work contribution," biases the checklist in
favor of work-relatedness. In the absence of a clear indication of
whether or not the workplace caused or substantially caused the
condition, asking a provider or employee if it were "possible"
that the workplace contributed to or aggravated the injury/illness
invites an affirmative response.

OSHA has concluded that requiring employers to rely on a health
care professional for the determination of the work-relatedness of
occupational injuries and illnesses would be burdensome, impractical,
and unnecessary. Small employers, in particular, would be burdened by
such a provision. Further, if the professional is not familiar with the
injured worker's job duties and work environment, he or she will not
have sufficient information to make a decision about the work-relatedness
of the case. OSHA also does not agree that health care
professional involvement is necessary in the overwhelming majority of
cases. Employers have been making work-relatedness determinations for
more than 20 years and have performed this responsibility well in that
time. This does not mean that employers may not, if they choose, seek
the advice of a physician or other licensed health care professional to
help them understand the link between workplace factors and injuries
and illnesses in particular cases; it simply means that OSHA does not
believe that most employers will need to avail themselves of the
services of such a professional in most cases.

Accordingly, OSHA has concluded that the determination of work-relatedness
is best made by the employer, as it has been in the past.
Employers are in the best position to obtain the information, both from
the employee and the workplace, that is necessary to make this
determination. Although expert advice may occasionally be sought by
employers in particularly complex cases, the final rule provides that
the determination of work-relatedness ultimately rests with the
employer.

The Final Rule's Exceptions to the Geographic Presumption

Paragraph 1904.5(b)(2) of the final rule contains eight exceptions
to the work environment presumption that are intended to exclude from
the recordkeeping system those injuries and illnesses that occur or
manifest in the work environment, but have been identified by OSHA,
based on its years of experience with recordkeeping, as cases that do
not provide information useful to the identification of occupational
injuries and illnesses and would thus tend to skew national injury and
illness statistics. These eight exceptions are the only exceptions to
the presumption permitted by the final rule.

(i) Injuries or illnesses will not be considered work-related if,
at the time of the injury or illness, the employee was present in the
work environment as a member of the general public rather than as an
employee. This exception, which is codified at paragraph
1904.5(b)(2)(i), is based on the fact that no employment relationship
is in place at the time an injury or illness of this type occurs. A
case exemplifying this exception would occur if an employee of a retail
store patronized that store as a customer on a non-work day and was
injured in a fall. This exception allows the employer not to record
cases that occur outside of the employment relationship when his or her
establishment is also a public place and a worker happens to be using
the facility as a member of the general public. In these situations,
the injury or illness has nothing to do with the employee's work or the
employee's status as an employee, and it would therefore be
inappropriate for the recordkeeping system to capture the case. This
exception was included in the proposal, and OSHA received no comments
opposing its adoption.

(ii) Injuries or illnesses will not be considered work-related if
they involve symptoms that surface at work but result solely from a
non-work-related event or exposure that occurs outside the work
environment. OSHA's recordkeeping system is intended only to capture
cases that are caused by conditions or exposures arising in the work
environment. It is not designed to capture cases that have no
relationship with the work environment. For this exception to apply,
the work environment cannot have caused, contributed to, or
significantly aggravated the injury or illness. This exception is
consistent with the position followed by OSHA for many years and
reiterated in the final rule: that any job-related contribution to the
injury or illness makes the incident work-related, and its corollary --
that any injury or illness to which work makes no actual contribution
is not work-related. An example of this type of injury would be a
diabetic incident that occurs while an employee is working. Because no
event or exposure at work contributed in any way to the diabetic incident,
the case is not recordable. This exception allows the employer to exclude
cases where an employee's non-work activities are the sole cause of the
injury or illness. The exception was included in the proposal, and OSHA
received no comments opposing its adoption.

(iii) Injuries and illnesses will not be considered work-related if
they result solely from voluntary participation in a wellness program
or in a medical, fitness, or recreational activity such as blood
donation, physical, flu shot, exercise classes, racquetball, or
baseball. This exception allows the employer to exclude certain injury
or illness cases that are related to personal medical care, physical
fitness activities and voluntary blood donations. The key words here
are "solely" and "voluntary." The work environment cannot have
contributed to the injury or illness in any way for this exception to
apply, and participation in the wellness, fitness or recreational
activities must be voluntary and not a condition of employment.

This exception allows the employer to exclude cases that are
related to personal matters of exercise, recreation, medical
examinations or participation in blood donation programs when they are
voluntary and are not being undertaken as a condition of work. For
example, if a clerical worker was injured while performing aerobics in
the company gymnasium during his or her lunch hour, the case would not
be work-related. On the other hand, if an employee who was assigned to
manage the gymnasium was injured while teaching an aerobics class, the
injury would be work-related because the employee was working at the
time of the injury and the activity was not voluntary. Similarly, if an
employee suffered a severe reaction to a flu shot that was administered
as part of a voluntary inoculation program, the case would not be
considered work-related; however, if an employee suffered a reaction to
medications administered to enable the employee to travel overseas on
business, or the employee had an illness reaction to a medication
administered to treat a work-related injury, the case would be
considered work-related.

This exception was included in the proposal, and received support
from a number of commenters (see, e.g., Exs. 15: 147, 181, 188, 226,
281, 304, 341, 345, 363, 348, 373). Other commenters supported this
proposal but suggested consolidating it with the proposed exception for
voluntary activities away from the employer's establishment (see, e.g.,
Exs. 15-176, 231, 248, 249, 250, 273, 301). OSHA has decided not to
combine this exception with another exception because questions are
often asked about injuries and illnesses that arise at the employer's
establishment and the Agency believes that a separate exception
addressing voluntary wellness programs and other activities will
provide clearer direction to employers.

(iv) Injuries and illnesses will not be considered work-related if
they are solely the result of an employee eating, drinking, or
preparing food or drink for personal consumption (whether bought on the
premises or brought in). This exception responds to a situation that
has given rise to many letters of interpretation and caused employer
concern over the years. An example of the application of this exception
would be a case where the employee injured himself or herself by
choking on a sandwich brought from home but eaten in the employer's
establishment; such a case would not be considered work-related under
this exception. On the other hand, if the employee was injured by a
trip or fall hazard present in the employer's lunchroom, the case would
be considered work-related. In addition, a note to the exception makes
clear that if an employee becomes ill as a result of ingesting food
contaminated by workplace contaminants such as lead, or contracts food
poisoning from food items provided by the employer, the case would be
considered work-related. As a result, if an employee contracts food
poisoning from a sandwich brought from home or purchased in the company
cafeteria and must take time off to recover, the case is not considered
work related. On the other hand, if an employee contracts food
poisoning from a meal provided by the employer at a business meeting or
company function and takes time off to recover, the case would be
considered work related. Food provided or supplied by the employer does
not include food purchased by the employee from the company cafeteria,
but does include food purchased by the employer from the company
cafeteria for business meetings or other company functions. OSHA
believes that the number of cases to which this exception applies will
be few. This exception was included in the proposal and received
generally favorable comments (see, e.g., Exs. 15: 31, 78, 105, 159,
176, 181, 184, 188, 345, 359, 428).

(v) Injuries and illnesses will not be considered work-related if
they are solely the result of employees doing personal tasks (unrelated
to their employment) at the establishment outside of their assigned
working hours. This exception, which responds to inquiries received
over the years, allows employers limited flexibility to exclude from
the recordkeeping system situations where the employee is using the
employer's establishment for purely personal reasons during his or her
off-shift time. For example, if an employee were using a meeting room
at the employer's establishment outside of his or her assigned working
hours to hold a meeting for a civic group to which he or she belonged,
and slipped and fell in the hallway, the injury would not be considered
work-related. On the other hand, if the employee were at the employer's
establishment outside his or her assigned working hours to attend a
company business meeting or a company training session, such a slip or
fall would be work-related. OSHA also expects the number of cases
affected by this exception to be small. The comments on this exception
are discussed in more detail in the section concerning proposed
Exception B-5, Personal Tasks Unrelated To Employment Outside of Normal
Working Hours, found later in this document.

(vi) Injuries and illnesses will not be considered work-related if
they are solely the result of personal grooming, self-medication for a
non-work-related condition, or are intentionally self-inflicted. This
exception allows the employer to exclude from the Log cases related to
personal hygiene, self-administered medications and intentional
self-inflicted injuries, such as attempted suicide. For example, a burn
injury from a hair dryer used at work to dry the employee's hair would
not be work-related. Similarly, a negative reaction to a medication
brought from home to treat a non-work condition would not be considered
a work-related illness, even though it first manifested at work. OSHA
also expects that few cases will be affected by this exception.

(vii) Injuries will not be considered work-related if they are
caused by motor vehicle accidents occurring in company parking lots or
on company access roads while employees are commuting to or from work.
This exception allows the employer to exclude cases where an employee
is injured in a motor vehicle accident while commuting from work to
home or from home to work or while on a personal errand. For example,
if an employee was injured in a car accident while arriving at work or
while leaving the company's property at the end of the day, or while
driving on his or her lunch hour to run an errand, the case would not
be considered work-related. On the other hand, if an employee was
injured in a car accident while leaving the property to purchase supplies
for the employer, the case would be work-related. This exception represents
a change from the position taken under the former rule, which was that
no injury or illness occurring in a company parking lot was considered
work-related. As explained further below, OSHA has concluded, based on
the evidence in the record, that some injuries and illnesses that occur
in company parking lots are clearly caused by work conditions or
activities -- e.g., being struck by a car while painting parking space
indicators on the pavement of the lot, slipping on ice permitted to
accumulate in the lot by the employer -- and by their nature point to
conditions that could be corrected to improve workplace safety and health.

(viii) Common colds and flu will not be considered work-related.

Paragraph 1904.5(b)(2)(viii) allows the employer to exclude cases
of common cold or flu, even if contracted while the employee was at
work. However, in the case of other infectious diseases such as
tuberculosis, brucellosis, and hepatitis C, employers must evaluate
reports of such illnesses for work relationship, just as they would any
other type of injury or illness.

(ix) Mental illness will not be considered work-related unless the
employee voluntarily provides the employer with an opinion from a
physician or other licensed health care professional with appropriate
training and experience (psychiatrist, psychologist, psychiatric nurse
practitioner, etc.) stating that the employee has a mental illness that
is work-related.

Exception (ix) is an outgrowth of proposed Exception B-11 -- Mental
illness, unless associated with post-traumatic stress. There were more
than 70 comments that addressed the issue of mental illness
recordkeeping. Two commenters suggested that OSHA postpone any decision
on the issue: the National Safety Council (Ex. 15: 359) recommended
further study, and the AFL-CIO (Ex. 15: 418) stated that the problem of
mental illness in the workplace was so prevalent and so important that
it should be handled in a separate rulemaking devoted to this issue.

A few commenters, including NIOSH (Ex. 15: 407), the American
Psychological Association (Ex. 15: 411), the AFL-CIO (Ex. 14: 418), the
United Steelworkers of America (Ex. 15: 429), and the United
Brotherhood of Carpenters Health and Safety Fund of North America (Ex.
15: 350) argued that recording should not be limited to post-traumatic
stress as OSHA had proposed but should instead include a broader range
of mental disorders. The primary arguments of this group of comments
were:

Workers are afflicted with a number of mental disorders
caused or exacerbated by work, and the statistics should include those
disorders just as they include physical disorders;

If the records include only post-traumatic stress as a
mental disorder, many work-related cases of mental illness will go
unreported (6,000 mental illness cases are reported to the BLS and
involve days away from work, but less than 10% of these are
post-traumatic stress cases), and the statistics will be skewed and
misinterpreted;

Employers are recording and reporting all mental disorders
now and thus would not be burdened by continuing the practice.

Arguments in support of treating mental illnesses no differently
from any other injury or illness were made by the American
Psychological Association (Ex. 15: 411):

The American Psychological Association strongly opposes OSHA's
proposal to consider a mental illness to be work related only if it
is "associated with post-traumatic stress." We feel that this
proposal disregards an accumulating body of research showing the
relationship between mental health/illness and workplace stressors.
Mental illness associated with post traumatic stress is only one
form of mental illness and use of this singular definition would
exclude much of the mental illness affecting our nation's workforce.

Job stress is perhaps the most pervasive occupational health
problem in the workplace today. There are a number of emotional and
behavioral results and manifestations of job stress, including
depression and anxiety. These mental disorders have usually been
captured under the "mental illness" category but would no longer
be recognized if the proposed reporting guidelines were enacted.

The 1985 National Health Interview Survey (Shilling & Brackbill,
1987) indicated that approximately 11 million workers reported
health-endangering levels of "mental stress" at work. A large and
growing body of literature on occupational stress has identified
certain job and organizational characteristics as having deleterious
effects on the psychological and physical health of workers,
including their mental health. These include high workload demands
coupled with low job control, role ambiguity and conflict, lack of
job security, poor relationships with coworkers and supervisors, and
repetitive, narrow tasks (American Psychological Association, 1996).
These include role stressors and demands in excess of control. More
precise analyses reveal that specific occupations and job factors
present particular risks. For example, machine-paced workers
(involving limited worker control of job demands) have one of the
highest levels of anxiety, depression, and irritation of 24
occupations studied (Caplan et al., 1975). Health professionals
(e.g., physicians, dentists, nurses, and health technologists) have
higher than expected rates of suicide which is most often related to
depression (Milham, 1983) and of alcohol and drug abuse (Hoiberg,
1982). Nurses and other health care workers have increased rates of
hospitalizations for mental disorders (Gundersson & Colcord, 1982;
Hoiberg, 1982). This information about specific risks within
different occupations provides important information for possible
intervention and training to improve conditions while at the same
time, indicating the possibility of specific stressors that need to
be addressed within the job. This type information would be lost
with the proposed reporting guidelines.

It is often impossible, even for a health care
professional, to determine objectively which mental disorders are work-related and which are not;

Workers have a right to privacy about mental conditions
that should not be violated; employers fear the risk of invasion of
privacy lawsuits if they record these cases on "public records";
because of confidentiality concerns, workers are unlikely to disclose
mental illnesses, and employers will therefore be unable to obtain
sufficient information to make recordability determinations;

Mental illnesses are beyond the scope of the OSHA Act;
Congress intended to include only "recognized injuries or illnesses";

Recording mental disorders opens the door to abuse;
workers may "fake" mental illnesses, and unions may encourage workers
to report mental problems as a harassment tactic; and

No useful statistics will be generated by such recording.

The American Iron and Steel Institute (AISI) (Ex.15: 395) expressed
the concerns of the group of employers opposed to any recording of
mental conditions:

OSHA should eliminate its proposed recording requirements for
mental illness. OSHA's proposed rule includes changes in an
employee's psychological condition as an "injury or illness," and
[proposed] Appendix A presumes that mental illness "associated with
post-traumatic stress" is work related. Employers, employees, and
OSHA have been wrestling for 25 years with the proper recording of
fairly simple injuries like back injuries, sprains, and illnesses
caused by chemical exposures. Requiring employers to record something
as vague as psychological conditions will impose impossible burdens
on employers (and compliance officers) and thus will create an unworkable
recordkeeping scheme.

Moreover, too little is known about the etiology of most mental
conditions to justify any presumption or conclusion that a condition
that surfaces at work was "caused" by something in the work
environment. It is hard to imagine a mental illness appearing at
work that is not a manifestation of a preexisting condition or
predisposition. Thus, the only sensible approach is to exclude all
mental illnesses from recording requirements.

Recording only of those mental illnesses that arise from a
single, work-related traumatic or catastrophic event, such as a
workplace explosion or an armed robbery;

Recording only of those mental illnesses that are directly
and substantially caused by a workplace incident;

Recording only of diagnosed mental illnesses resulting
from a single workplace event that is recognized as having the
potential to cause a significant and severe emotional response;

Recognition only of post-traumatic stress cases or related
disorders that include physical manifestations of illness and that are
directly related to specific, objectively documented, catastrophic
work-related events; and

Recording only of diagnosed conditions directly
attributable to a traumatic event in the workplace, involving either
death or severe physical injury to the individual or a co-worker.

A comment from the Department of Energy (Ex. 15: 163) stated that
any diagnosis of mental illness should be made by at least two
qualified physicians, and CONSOL Inc. (Ex. 15: 332) and Akzo Nobel (Ex.
15: 387) wanted the rule to require that any such diagnosis meet the
criteria of the Diagnostic and Statistical Manual, Version IV (DSM-IV).
Commenters had different opinions about the minimum qualifications
necessary for a health care professional to make decisions about mental
health conditions; specifically, some commenters urged OSHA to exclude
"counselors" (Ex. 15: 226) or to include "only psychiatrists and
Ph.D. psychologists" (Ex. 15: 184).

A number of commenters suggested excluding from the requirement to
record any mental illness related to personnel actions such as
termination, job transfer, demotions, or disciplinary actions (see,
e.g., Exs. 15: 68, 127, 136, 137, 141, 176, 184, 224, 231, 266, 273,
278, 301, 395, 424). The New York Compensation Board (Ex. 15: 68) noted
that New York's workers' compensation law excludes such cases by
specifying that mental injuries are compensable with the exception of
injuries that are the "direct consequence of a lawful personnel
decision involving a disciplinary action, work evaluation, job
transfer, demotion, or termination taken in good faith by the
employer."

Finally, several employers raised the issues of the privacy of an
employee with a mental disorder, the need to protect doctor-patient
confidentiality, and the potential legal repercussions of employers
breaching confidentiality in an effort to obtain injury and illness
information and in recording that information (see, e.g., Exs. 15: 78,
153, 170, 195, 260, 262, 265, 277, 348, 392, 401, 406, 409). Some of
these commenters suggested that an employer should only have the
obligation to record after the employee has brought the condition to
the attention of the employer, either directly or through medical or
workers' compensation claims, and in no case should doctor-patient
confidentiality be breached. (Issues related to confidentiality of the
Log are discussed in detail in the summary and explanation of
§ 1904.35, Employee Involvement.)

After a review of the comments and the record on this issue, OSHA
has decided that the proposed exception, which would have limited the
work-relatedness (and thus recordability) of mental illness cases to
those involving post-traumatic stress, is not consistent with the
statute or the objectives of the recordkeeping system, and is not in
the best interest of employee health. The OSH Act is concerned with
both physical and mental injuries and illnesses, and in fact refers to
"psychological factors" in the statement of Congressional purpose in
section 2 of the Act (29 U.S.C. 651(b)(5)).

In addition, discontinuing the recording of mental illnesses would
deprive OSHA, employers and employees, and safety and health
professionals of valuable information with which to assess occupational
hazards and would additionally skew the statistics that have been kept
for many years. Therefore, the final rule does not limit recordable
mental disorders to post traumatic stress syndrome or any other
specific list of mental disorders. OSHA also does not agree that
recording mental illnesses will lead to abuse by employees or others.
OSHA has required the recording of these illnesses since the inception
of the OSH Act, and there is no evidence that such abuse has occurred.

However, OSHA agrees that recording work-related mental illnesses
involves several unique issues, including the difficulty of detecting,
diagnosing and verifying mental illnesses; and the sensitivity and
privacy concerns raised by mental illnesses. Therefore, the final rule
requires employers to record only those mental illnesses verified by a
health care professional with appropriate training and experience in
the treatment of mental illness, such as a psychiatrist, psychologist,
or psychiatric nurse practitioner. The employer is under no obligation
to seek out information on mental illnesses from its employees, and
employers are required to consider mental illness cases only when an
employee voluntarily presents the employer with an opinion from the
health care professional that the employee has a mental illness and
that it is work related. In the event that the employer does not
believe the reported mental illness is work-related, the employer may
refer the case to a physician or other licensed health care
professional for a second opinion.

OSHA also emphasizes that work-related mental illnesses, like other
illnesses, must be recorded only when they meet the severity criteria
outlined in § 1904.7. In addition, for mental illnesses, the
employee's identity must be protected by omitting the employee's name
from the OSHA 300 Log and instead entering "privacy concern case" as
required by § 1904.29.

Exceptions Proposed but Not Adopted

The proposed rule contained eleven exceptions to the geographic
presumption. Some of these exceptions are included in the final rule,
and therefore are discussed above, while others were rejected for
various reasons. The following discussion addresses those proposed
exemptions not adopted in the final rule, or not adopted in their
entirety.

Proposed Exception B-5. Personal Tasks Unrelated To Employment
Outside of Normal Working Hours. The proposed rule included an
exception for injuries and illnesses caused solely by employees
performing personal tasks at the establishment outside of their normal
working hours. Some aspects of this proposed exception have been
adopted in the final, but others have not. Almost all the comments on
this proposed exception supported it (see, e.g., Exs. 15: 31, 78, 105,
121, 159, 281, 297, 336, 341, 350), and many suggested that the
exception be expanded to include personal tasks conducted during work
hours (see, e.g., Exs. 15: 176, 184, 201, 231, 248, 249, 250, 273, 301,
335, 348, 374). Caterpillar, Inc. (Ex. 15: 201) offered an opinion
representative of the views of these commenters: "We agree with this
exception but it should be expanded to include any personal tasks
performed during work hours if the work environment did not cause the
injury or illness. Expanding this exemption will be consistent with the
exemptions for voluntary wellness program participation and eating,
drinking, and preparing one's own food."

One commenter disagreed with the proposed exception (the Laborers
Safety and Health Fund of North America (Ex. 15: 310)) and cited as a
reason the difficulty of determining the extent to which, for example,
a case involving an employee misusing a hazardous chemical after hours
because he or she did not receive the necessary Right-to-Know training
from the employer would qualify for this exception.

Several commenters suggested that OSHA clarify what it meant by the
terms "personal tasks" and "normal working hours" (see, e.g., Exs.
15: 102, 304, 345). For example, a representative of Constangy, Brooks
& Smith recommended that:

More explanation be provided regarding the further limitation on
this exclusion. For example, does this section of the proposal
envision the exclusion of injuries and illnesses resulting from
personal tasks performed during overtime (i.e., outside of normal
working hours)? If I am injured while talking to my spouse on the
phone during regular business hours, must the case be recorded,
while if the same injury occurs during overtime, the case is
non-recordable? Also, how are injuries to salaried employees (who are
exempt from overtime) treated under this aspect of the proposal? I
submit that if these issues are not fully "fleshed out" in the
proposal or its preamble, this subparagraph will result in the
creation of more questions than it resolves.

The National Federation of Independent Business (NFIB) (Ex. 15:
304) asked OSHA "to specify that the 'normal working hours' refers to
the work schedule of the employee not the employer. If this distinction
is not made clear, this proposal arguably could deny this exemption to
establishments which operate during non-standard operating hours (e.g.,
24 hours a day, weekends, after 5 PM, etc.) -- and we assume this is not
OSHA's intent."

OSHA believes that injuries and illnesses sustained by employees
engaged in purely personal tasks at the workplace, outside of their
assigned working hours, are not relevant for statistical purposes and
that information about such injuries and illnesses would not be useful
for research or other purposes underlying the recordkeeping
requirements. OSHA has therefore decided to include some parts of the
proposed exception in the final rule. Additional language has been
added to the exception since the proposal to clarify that the exception
also applies when the employee is on the premises outside of his or her
assigned working hours, as the NFIB pointed out.

OSHA does not agree, however, with those commenters who suggested
that the exception be expanded to include personal tasks performed by
employees during work hours. As discussed in preceding sections of this
summary and explanation and in the Legal Authority discussion, there
are strong legal and policy reasons for treating an injury or illness
as work-related if an event or exposure in the work environment caused
or contributed to the condition or significantly aggravated a
pre-existing condition. Under this "but-for" approach, the nature of the
activity the employee was engaged in at the time of the incident is not
relevant, except in certain limited circumstances. Moreover, OSHA
believes that it would be difficult in many cases for employers to
distinguish between work activities and personal activities that occur
while the employee is on-shift. Accordingly, the final rule codifies
parts of this proposed exception in paragraph 1904.5(b)(v) in the
following form: "The injury or illness is solely the result of an
employee doing personal tasks (unrelated to their employment) at the
establishment outside of the employee's assigned working hours."

Proposed Exception B-6. Cases Resulting From Acts of Violence by
Family Members or Ex-spouses When Unrelated to Employment, Including
Self-inflicted Injuries. The final rule does not exempt workplace
violence cases from the Log, although it does allow employers to
exclude cases that involve intentionally self-inflicted injuries. The
final rule thus departs substantially from the proposal in this
respect. The proposed exception, which would have exempted domestic
violence and self-inflicted cases from the Log, drew many comments. The
comments generally fell into four categories: (1) those urging OSHA to
require the recording of all cases of violence occurring at the
establishment; (2) those recommending that no violence cases at the
establishment be recorded; (3) those recommending recordation only of
violence cases perpetrated by certain classes of individuals; and (4)
those urging OSHA to require the recording of cases involving violence
related to employment without regard to the perpetrator. The comments
on the proposed exception are discussed below.

No exemption/record all injuries and illnesses arising from violent
acts. A number of commenters objected to OSHA's proposed exemption of
domestic violence cases from the list of recordable injuries, arguing
that all acts of violence occurring at the workplace should be recorded
(see, e.g., Exs. 15: 31, 54, 56, 88, 90, 91, 93, 94, 99, 101, 103, 104,
106, 111, 114, 115, 144, 186, 187, 238, 345, 362, 407, 418, 439). For
example, the North Carolina Department of Labor stated that "if an
employer must log the injuries sustained as a result of workplace
violence then the employer may also institute needed security measures
to protect the employees at the establishment. An employer should be
required to log any 'preventable' injury (above first aid) that an
employee sustains at the establishment" (Ex. 15: 186). The Miller
Brewing Company also supported recording all acts of workplace
violence, based on the following rationale: "I envision a scenario
involving an angry husband attempting to kill his wife but, because he
is a "bad shot," another employee is killed. Why should killing an
innocent bystander be a reportable event, whereas a fatality involving
a spouse is excluded?" (Ex. 15: 442).

Exception for all violent acts. There were commenters who thought
injuries and illnesses resulting from violence were outside of OSHA's
purview and should not be recorded at all (see, e.g.,
Exs. 15: 28, 75, 96, 107,
203, 254, 289). For example, the Quaker Oats Company (Ex. 15: 289)
stated that "[w]orkplace violence in any form is a personal criminal
act, and in no way, shape or form should violence be labeled under
hazards in the workplace or even [be] monitored by OSHA. A person who
may turn to violent behavior from family, personal, or job dispute is a
matter of NLRB [National Labor Relations Board], law enforcement or
state employment statutes, not industrial safety." The National
Restaurant Association (Ex. 15: 96) agreed:

Congress passed the Occupational Safety and Health Act to
regulate workplace hazards dealing with the workplace environment or
processes that employers could identify and possibly protect. The
Congress did not contemplate that this statute would be used to
redress incidents over which the employer has no ability to control,
such as the unpredictability of workers or nonworkers committing
violent, tortuous acts towards others. This issue was litigated
unsuccessfully by OSHA in Secretary of Labor v. Megawest Financial,
Inc., OSHRC Doc. No. 93-2879 (June 19, 1995). OSHA apparently is
attempting in this NPR to obtain by regulatory fiat what was
rejected by case law and to displace state tort law actions by using
the OSH Act to police social behavior.

Recording work-related violence except acts of certain classes of
individuals. There were many commenters who supported the proposed
exception, which would only have excluded acts of violence on employees
committed by family members and ex-spouses and self-inflicted injuries
and illnesses. The proposed exception as drafted was supported by some
commenters (see, e.g., Exs. 15: 78, 198, 350, 359). Others thought the
exception should be expanded to include not only family members and ex-spouses, but also live-in partners, friends, and other intimates (see,
e.g., Exs. 15: 80, 122, 153, 181, 213, 325, 363, 401), while others
argued that the exemption should apply to the general public, i.e., to
all people (see, e.g., Exs. 15: 9, 111, 119, 151, 152, 179, 180, 239,
260, 262, 265, 272, 303, 304, 341, 356, 375, 401, 430).

Typical of comments in support of a broader exception were the
remarks of the National Oilseed Processors Association (Ex. 15: 119):

The only time violence in the work place should be considered
work-related is when it is associated with a work issue and
committed by an employee or other person linked to the business,
e.g., a customer. Any other act of violence is not under the control
of the employer and should not be considered work-related.

Alabama Shipyard Inc. (Ex. 15: 152) added:

Exempting acts of violence based strictly on acts committed by
family members, a spouse, or when self-inflicted is too limited.
Instead, the exemption should be based on the relationship of the
perpetrator to the employer. The employer should be no more
responsible for some random act of violence by a crazy individual
walking in off the street who is in no way associated with the
employer than it should be for an act of violence by a family
member.

Southern California Edison (Ex. 15: 111) stated that "violence is
another example that should be excluded from being work-related if the
employee personally knows the attacker. This would include family
members or coworkers. Only those acts of violence that result from
random criminal activity should be included (i.e., robbery, murder,
etc.)." TU Services (Ex. 15: 262) recommended "that only cases that
involve acts of violence that are the result of random criminal
activity should be recorded. Cases that involve anyone with a personal
relationship with the employee should be excluded." The American Feed
Industry Association (Ex. 15: 204) and United Parcel Service (Ex. 15:
424), on the other hand, argued that cases involving workplace violence
should only be recorded if the perpetrator was a fellow employee.

Record all violent acts directly related to employment regardless
of who commits the act. Commenters favoring this approach suggested
that violence by family members or others should be recorded if linked
to work, but that all personal disputes should be exempt (see, e.g.,
Exs. 15: 105, 146, 176, 184, 231, 273, 297, 301, 313, 336, 348, 352,
353, 374, 389, 392). The Workplace Health and Safety Council (Ex. 15:
313) proposed the following exception:

Cases will not be considered work-related if they result solely
from acts of violence committed by one's family, or ex-spouse, or
other persons when unrelated to the worker's employment, including
intentionally self-inflicted injuries. Violence by persons on the
premises in connection with the employer's business (including
thieves and former employees) is considered work related even if
committed by one's family or ex-spouse.

The American Ambulance Association (Ex. 15: 226) stated simply:
"AAA believes that OSHA should define what is work-related violence
and assume that all other acts are not work-related, and eliminate the
family and non-family distinction." The United Auto Workers (Ex. 15:
438) agreed:

Incidents of intentional violence should be recorded only if
they arise from employment activities. Incidents between employees,
or between employees and non-employees which rise from personal
disputes should not be recorded. Existing data show that the number
of incidents of interpersonal violence between coworkers or workers
and intimates is small, although these incidents do get high
visibility. Therefore, exclusion of these small number of cases will
have little effect on statistical measures.

Some commenters urged OSHA to place some restrictions on the
proposed exception. For example, two commenters argued that cases
involving violence should only be recorded for occupations where there
is a reasonable potential of encountering violence (Exs. 15: 335, 409).
The American Automobile Manufacturers Association (AAMA) stated that:

Workplace violence as a reasonable function of an employee's
employment should be recorded, for example: a cashier injured in a
robbery attempt at a 24-hour retail establishment. An example of
"unreasonable" recordable workplace violence that should not be
recordable (i.e., where an employee was simply "in the wrong place
at the wrong time") would be a flight crew that perishes mid-flight
from a terrorist's bomb. These cases have nothing to do with the
individual's employer, only that they happened to be victims at the
employer's place of employment. It is AAMA's understanding that the
purpose of the subject standard is to collect information pertaining
to injuries and illnesses that arise out of conditions in the
workplace, with the end objective being to use that information to
correct or mitigate these conditions so as to prevent additional
injuries or illnesses.

Caterpillar Inc. (Ex. 15: 201) suggested that "a predominant
contributor concept, similar to that being proposed to help establish
work-relatedness, could be utilized in cases where the clear cause of
violence is not readily apparent."

In the final rule, OSHA has decided not to exclude from recording
those injury and illness cases involving acts of violence against
employees by family members or ex-spouses that occur in the work
environment or cases involving other types of violence-related injuries
and illnesses. The final rule does exempt from recording those cases
resulting from intentionally self-inflicted injuries and illnesses;
these cases represent only a small fraction of the total number of
workplace fatalities (three percent of all 1997 workplace violence
fatalities) (BLS press release USDL 98-336, August 12, 1998). OSHA
believes that injuries and illnesses resulting from acts of violence
against employees at work are work-related under the positional theory
of causation. The causal connection is usually established by the fact
that the assault or other harmful event would not have occurred had the
employee not, as a condition of his or her employment, been in the position
where he or she was victimized. Moreover, occupational factors are directly
involved in many types of workplace violence, such as assaults engendered
by disputes about working conditions or practices, or assaults on security
guards or cashiers and other employees, who face a heightened risk of violence
at work. Accordingly, OSHA does not accept the premise, advanced by some
commenters, that workplace violence is outside the purview of the statute.

In some cases, acts of violence committed by a family member or
ex-spouse at the workplace may be prevented by appropriate security
measures enforced by employers. Moreover, information about workplace
injuries due to assaults by family members or ex-spouses is relevant
and should be included in the overall injury and illness data for
statistical and research purposes. Omitting the proposed exception also
obviates the need for employers to make distinctions among various
degrees of personal relationships. Accordingly, the final rule does not
allow employers to exclude injuries and illnesses resulting from
violence occurring in the workplace from their Logs. However, some
cases of violence will be excluded under § 1904.5(b)(2)(v), which
exempts an injury or ilness that is solely the result of an employee
doing personal tasks (unrelated to their employment) at the
establishment outside of the employee's assigned working hours. For
example, if an employee arrives at work early to use a company
conference room for a civic club meeting, and is injured by some
violent act, the case would not be considered work related.

OSHA has decided to maintain the exclusion for intentionally
self-inflicted injuries that occur in the work environment in the final
rule. The Agency believes that when a self-inflicted injury occurs in
the work environment, the case is analogous to one in which the signs
or symptoms of a pre-existing, non-occupational injury or illness
happen to arise at work, and that such cases should be excluded for the
same reasons. (see paragraph 1904.5(b)(2)(ii)). The final rule at
paragraph 1904.5(b)(2)(vi) therefore includes that the part of
exception proposed that applied to injuries and illnesses that are
intentionally self-inflicted.

Proposed Exception B-7. Parking Lots and Access Roads. This
proposed exception, which in effect would have narrowed the definition
of "establishment" to exclude company parking lots, had approximately
equal numbers of commenters in favor and opposed. The final rule
includes some aspects of the proposed exemption. In favor of recording
injuries in parking lots and on access roads were the commenters
represented by Exs. 24, 15: 41, 72, 310, 362. Typical of the views of
this group was that of the Association of Operating Room Nurses (AORN)
(Ex. 15: 72), which noted that:

[e]mployee parking lots should be included in defining "work-related."
Perioperative nurses and other surgical service providers
may be required on a "call" basis during the night hours.
Consequently they enter and leave parking lots at unusual times when
traffic in the lots is minimal. These providers may be at increased
risk for random violence. Absent the "call" requirement, the
employee would not be in the parking lot at the time of the injury.
Further, if the employee is paid for travel time to and/or from the
facility, injuries occurring during that period should be considered
"work-related."

The AFL-CIO (Ex. 15: 362) added that employers may be less likely
to provide lighting, security and other controls that could prevent
violent assaults in parking lots and access roads if injuries occurring
there are not recordable.

[i]nevitably, activities that take place in the company parking
lot or on the company access road are not only outside of the
employer's dominion and control but also are most often not related
in any way to the employee's work. Including injuries that occur in
these locations as part of the OSHA log would lead to an inaccurate
reflection of injury data as a whole. OSHA should retain this
exemption. An employer has no control over an employee's commute to
and from the workplace, with the exception of arrival and departure
times for the work day. If OSHA requires the reporting of injuries
that occur during the employee's commute, the number of injuries
reported would increase dramatically.

The National Federation of Independent Business (Ex. 15: 304)
stated that the proposed exception would be consistent with workers'
compensation rules.

OSHA has concluded that a limited exception for cases occurring on
parking lots is appropriate but that the broader exception proposed is
not. The final rule thus provides an exception for motor vehicle injury
cases occurring when employees are commuting to and from work. As
discussed in the preamble that accompanies the definition of
"establishment" (see Subpart G of the final rule), OSHA has decided
to rely on activity-based rather than location-based exemptions in the
final rule. The parking lot exception in the final rule applies to
cases in which employees are injured in motor vehicle accidents
commuting to and from work and running personal errands (and thus such
cases are not recordable), but does not apply to cases in which an
employee slips in the parking lot or is injured in a motor vehicle
accident while conducting company business (and thus such cases are
recordable). This exception is codified at paragraph 1904.5(b)(2)(vii)
of the final rule.

Proposed Exception B-8. Never Engaged in an Activity That Could
Have Placed Stress On the Affected Body Part. This proposed exception
would have allowed employers not to record cases if no aspect of the
worker's job placed stress on the affected body part or exposed the
worker to any chemical or physical agent at work that could be
associated with the observed injury or illness. This proposed exception
received support from a number of employers (see, e.g., Exs. 15: 176,
185, 231, 273, 301, 341, 359, 406). For example, the National Wholesale
Druggists' Association stated that "Such injuries or illnesses are
obviously not caused by any work-related activities and should
therefore be excluded from any reporting and recording requirements'
(Ex. 15: 185).

Deleting the word "never" from the proposed exception was also
supported by many respondents (see, e.g., Exs. 15: 146, 279, 304, 335,
374, 392, 395, 430, 431, 442). Representative of the latter group is
the following comment by the BF Goodrich Company (Ex. 15: 146):

The use of the term "never" in this exemption requires too
harsh a test for case evaluation. A back injury should not be
recordable because the employee lifted a box 10 years previous to
the injury. A more reasonable evaluation criteria meeting the same
intent could be stated as below: The injury or illness is not work-related if it cannot be associated with the employee's duties or
exposures at work.

Taking an opposing view to the proposed exception were the AFL-CIO
(Ex. 15: 418), the United Steelworkers of America (Ex. 15: 429), and
the United Brotherhood of Carpenters Health and Safety Fund of North
America (Ex. 15: 350). The AFL-CIO stated that:

We believe when evaluating injuries this approach could
logically work in most cases, but in cases of chemical exposures and
musculoskeletal disorders this logic does not hold merit. If the
Agency attempts to apply this approach to the aforementioned types
of cases, the employer will have to become an epidemiologist,
ergonomist or toxicologist to determine if these cases meet the
recordability criteria set forth in this proposal . . . . We encourage
the Agency to omit this provision from the final standard. Because of
the increasing numbers of workers being medically diagnosed for multiple
chemical sensitivity and the exposures some workers receive without any knowledge
until years after the incident, the Agency must carefully think about the
inclusion of this provision to the final standard.

Similarly, the Carpenters Fund (UBC H&SF) argued that:

[T]his [exception] would exclude those cases where symptoms
arise at work, but are caused by accidents or exposures away from
work. The UBC H&SF agrees with the theory of this provision, but
emphasizes that the task placed on employers to determine causation
by exposures away from work would in many cases be impossible. Also
the apportionment of causation is not discussed in this analysis and
would allow some to record cases .01 percent caused by work and
others to not record cases 99 percent caused by work. For the
foregoing reasons, that this requirement is unworkable, we urge it
be dropped from the final rule.

Based on a review of the record on this issue, OSHA has decided not
to include this proposed exception in the final rule. On reflection,
the proposed language is confusing and would be difficult to apply. The
underlying concept, to the extent it has merit, is better covered in
the exemption paragraph 1904.5(b)(2)(ii). As discussed in preceding
sections of this summary and explanation for section 1904.5, there are
sound legal and policy justifications for defining work-relationship
broadly to include injuries and illnesses that result from events or
exposures in the work environment. The proposed exception would
effectively "swallow" the geographic presumption theory of causation
underpinning the rule by shifting the focus of enquiry in every case to
the employee's specific job duties. As OSHA has noted, the geographic
presumption includes some cases in which the illness or injury cannot
be directly linked to the stresses imposed by job duties. For example,
if an employee trips while walking on a level factory floor and breaks
his arm, the injury should be recordable. The comments supporting the
proposed exemption do not, in OSHA's view, provide a basis for
excluding these types of cases from recording on the Log.

Proposed Exception B-9. Voluntary Community Activities Away From
The Employer's Establishment. This proposed exemption drew two comments
supporting it as written (Exs. 15: 78, 304), and several other
participants recommended that it be expanded to exclude injuries and
illnesses that arise from voluntary community activities wherever they
occur (see, e.g., Exs. 15: 146, 184, 272, 303, 359). Typical of these
comments is one from U.S. West (Ex. 15: 184), which stated that
"[e]mphasis should be on the activity that occurred, not the location
of the activity."

The United Brotherhood of Carpenters, Health & Safety Fund of North
America (Ex. 15: 350) agreed with the proposed exception, except for
cases where the employee is present as a condition of employment or in
the employer's interest. It commented:

[A]t the surface this exception seems to make perfect sense.
However, real employment relationships and real employer-community
relationships do not fit such clean characterizations. Many times
employees are forced to become "team players" and volunteer for
unpaid off-establishment activities. Many employers engage in
community "good will" generating activities by having their
employees volunteer. For the above reasons we urge that cases
occurring away from the employer's establishment be considered
work-related if the employee is engaged in any activity in the interest
of the employer or is there as a condition of employment.

OSHA has decided not to include this proposed exception in the
final rule because the final rule's overall definition of
work-environment addresses this situation in a simple and straightforward
way. If the employee is taking part in the activity and is either
working or present as a condition of employment, he or she is in the
work environment and any injury or illness that arises is presumed to
be work-related and must then be evaluated for its recordability under
the general recording criteria. Thus, if the employee is engaged in an
activity at a location away from the establishment, any injury or
illness occurring during that activity is considered work-related if
the worker is present as a condition of employment (for example, the
worker is assigned to represent the company at a local charity event).
For those situations where the employee is engaged in volunteer work
away from the establishment and is not working or present as a
condition of employment, the case is not considered work-related under
the general definition of work-relationship. There is thus no need for
a special exception.

'[N]ormal body movements' needs clarification since OSHA has not
set forth any reasons for excluding it. OSHA's language states that
there is an exclusion "* * * provided that activity does not
involve a job related motion and the work environment does not
contribute to the injury or illness". OSHA goes on to elaborate
that illnesses or injuries should not be recorded if they are not
related to an identifiable work activity. However, OSHA also states
the exclusion would not apply if it involved repetitive motion or if
the work environment either caused or contributed to the injury or
illness. This language is ambiguous and redundant. Repetitive motion
injury/illness conditions should be treated in the same way as any
other condition. There should be a work-related exclusion if the
work environment did not cause or contribute to the injury/illness.

[T]he definition of work-related resulting from normal body
movements is too broad. The definition excludes walking, talking,
etc. 'provided the activity does not involve a job-related motion.'
Does that mean that if an employee is walking to the rest room and
becomes ill, the illness is not work-related, but, if he/she is
walking from the rest room back to his/her work station, it is work-related?
If the employee is engaged in social talk, the illness is
not work-related, but, if he/she is engaged in a conversation
regarding some aspect of work, the illness is work-related?

Other commenters objected to the concept of excluding cases
resulting from normal body movements from the Log (Ex. 56X, pp. 51, 52;
Ex. 15: 418). Walter Jones of the International Brotherhood of
Teamsters used the following example:

We do take opposition to some of the exceptions. For cases that
result in normal body movement, I'd like to just bring another
example up. We have a member who after spending most of his morning
sorting about 700 different boxes, on break in a normal,
unencumbered motion, dropped his pencil and picked it up, had a back
spasm and his back went out. And I know that according to the way
the standard is written, or the regulation is written, that this can
be attributed to work activity. But the reason we bring it up is we
need to be careful in trying to be that exact because an employer
will take an uninformed employee and may take liberties (Ex. 56X,
pp. 51, 52).

OSHA has decided not to include a recordkeeping exception for
injuries or illnesses associated with normal body movements in the
final rule. The proposed provision was intended to exclude the recording
of cases that happened to occur in the work environment without any real work
contribution. However, the comments on this issue have convinced OSHA
that the proposed provision is unnecessary, would be unworkable, and
would result in incomplete and inconsistent data. The case cited by the
Teamsters is but one example of a legitimate work-related injury that
could go unrecorded if OSHA were to adopt this provision in the final
rule. Further, the final rule already makes clear that injuries and
illnesses that result solely from non-work causes are not considered
work-related and therefore are excluded from the Log, and establishes
the requirements employers must follow to determine work-relationship
for an injury or illness when it is unclear whether the precipitating
event occurred in the workplace or elsewhere (see paragraph
1904.5(b)(3)). According to the requirements in that section, the
employer must evaluate the employee's work duties and the work
environment to decide whether it is more likely than not that events or
exposures in the work environment either caused or contributed to the
condition or significantly aggravated a pre-existing condition. If so,
the case is work-related.

Additional Exemptions Suggested by Commenters but Not Adopted

In addition to commenting on the eleven proposed exceptions,
interested parties suggested adding some exceptions to the final rule.
This section contains a discussion of those additional exemptions
suggested by commenters but not adopted in the final rule.

Acts of God: The International Dairy Foods Association (IDFA)
suggested that OSHA exclude any injury or illness that was "the result
of an "Act of God," such as, but not limited to, an earthquake or a
tornado" (Ex. 15: 203). OSHA has not adopted such an exception because
doing so would not be in keeping with the geographic presumption
underpinning this final rule, and would exclude cases that are in fact
work-related. For example, if a worker was injured in a flood while at
work, the case would be work-related, even though the flood could be
considered an act of God. Accordingly, if workplace injuries and
illnesses result from these events, they must be entered into the
records (for a more detailed discussion of this point, see the Legal
Authority section, above).

Phobias: The American Crystal Sugar Company (Ex. 15: 363) suggested
that OSHA add an exception from recording for cases involving phobias:

I would also like to suggest exempting an employee's loss of
consciousness based on a fear-based phobia, i.e., fainting at the
sight of blood. Occasionally an OSHA regulation may require blood
tests, such as checking lead levels in blood. There are a few
employees that will lose consciousness at the sight of a needle.
These phobias are not limited to medical procedures, but may include
spiders, snakes, etc. In several of our factories, the occupational
health nurse will administer tetanus boosters as a service to our
employees. Employees that have a phobia about injections can (and
do) lose consciousness, which now makes what was intended as a
service an OSHA recordable accident.

OSHA has not included an exception from recording in the final
recordkeeping regulation for phobias or any other type of mental
illness. The scenario described by the American Crystal Sugar Company,
which involved fainting from fear of an injection offered as a service
to employees, might be considered non-work-related under the exception
codified at paragraph 1904.5(b)(2)(iii), Voluntary participation in a
medical activity. OSHA also believes that it would be unreasonable to
omit a case of loss of consciousness resulting from the administration
of a blood test for lead exposure at work. These tests are necessitated
by the employee's exposure to lead at work and are required by OSHA's
lead standard (29 CFR 1910.1025). The other scenarios presented by
these commenters, involving spiders, snakes, etc., would also be
work-related under the geographic presumption.

Illegal activities and horseplay: Several commenters suggested an
exception for an employee engaging in illegal activities, horseplay, or
failing to follow established work rules or procedures (see, e.g., Exs.
15: 49, 69, 117, 151, 152, 179, 180, 203, 368, 393). The comment of the
American Network of Community Options and Resources (ANCOR) (Ex. 15:
393) is representative of those on this issue:

Employees who fail to follow employer training and best
practices or violate established policy present a threat not only to
other employees and consumers/customers, but also to employers held
responsible for the consequences of their actions. For example,
ANCOR does not believe that employers should have to use these
recording and reporting procedures when illnesses and injuries are a
result of an employee engaged in illegal activities or fails/
violates established procedures.

OSHA has not adopted any of these recommended exceptions in the
final recordkeeping rule because excluding these injuries and illnesses
would be inconsistent with OSHA's longstanding reliance on the
geographic presumption to establish work-relatedness. Furthermore, the
Agency believes that many of the working conditions pointed to in these
comments involve occupational factors, such the effectiveness of
disciplinary policies and supervision. Thus, recording such incidents
may serve to alert both the employer and employees to workplace safety
and health issues.

Non-occupational degenerative conditions: Two commenters also asked
OSHA to include in the final rule a recording exception for non-occupational
degenerative conditions (Exs. 15: 176, 248) such as high
blood pressure, arthritis, coronary artery disease, heart attacks, and
cancer that can develop regardless of workplace exposure. OSHA has not
added such an exception to the rule, but the Agency believes that the
fact that the rule expects employers confronted with such cases to make
a determination about the extent to which, if at all, work contributed
to the observed condition will provide direction about how to determine
the work-relatedness of such cases. For example, if work contributes to
the illness in some way, then it is work-related and must be evaluated
for its recordability. On the other hand, if the case is wholly caused
by non-work factors, then it is not work-related and will not be
recorded in the OSHA records.

Determining Whether the Precipitating Event or Exposure Occurred in the
Work Environment or Elsewhere

Paragraph 1904.5(b)(3) of the final rule provides guidance on
applying the geographic presumption when it is not clear whether the
event or exposure that precipitated the injury or illness occurred in
the work environment or elsewhere. If an employee reports pain and
swelling in a joint but cannot say whether the symptoms first arose
during work or during recreational activities at home, it may be
difficult for the employer to decide whether the case is work-related.
The same problem arises when an employee reports symptoms of a
contagious disease that affects the public at large, such as a
staphylococcus infection ("staph" infection) or Lyme disease, and the
workplace is only one possible source of the infection. In these
situations, the employer must examine the employee's work duties and
environment to determine whether it is more likely than not that one or
more events or exposures at work caused or contributed to the
condition. If the employer determines that it is unlikely that the
precipitating event or exposure occurred in the work environment,
the employer would not record the case. In the staph infection example
given above, the employer would consider the case work-related, for
example, if another employee with whom the newly infected employee had
contact at work had been out with a staph infection. In the Lyme disease
example, the employer would determine the case to be work-related if,
for example, the employee was a groundskeeper with regular exposure to
outdoor conditions likely to result in contact with deer ticks.

In applying paragraph 1904.5(b)(3), the question employers must
answer is whether the precipitating event or exposure occurred in the
work environment. If an event, such as a fall, an awkward motion or
lift, an assault, or an instance of horseplay, occurs at work, the
geographic presumption applies and the case is work-related unless it
otherwise falls within an exception. Thus, if an employee trips while
walking across a level factory floor, the resulting injury is
considered work-related under the geographic presumption because the
precipitating event -- the tripping accident -- occurred in the workplace.
The case is work-related even if the employer cannot determine why the
employee tripped, or whether any particular workplace hazard caused the
accident to occur. However, if the employee reports an injury at work
but cannot say whether it resulted from an event that occurred at work
or at home, as in the example of the swollen joint, the employer might
determine that the case is not work-related because the employee's work
duties were unlikely to have caused, contributed to, or significantly
aggravated such an injury.

Significant Workplace Aggravation of a Pre-existing Condition

In paragraph 1904.5(b)(4), the final rule makes an important change
to the former rule's position on the extent of the workplace
aggravation of a preexisting injury or illness that must occur before
the case is considered work-related. In the past, any amount of
aggravation of such an injury or illness was considered sufficient for
this purpose. The final rule, however, requires that the amount of
aggravation of the injury or illness that work contributes must be
"significant," i.e., non-minor, before work-relatedness is
established. The preexisting injury or illness must be one caused
entirely by non-occupational factors.

A number of commenters on OSHA's proposed rule raised the issue of
recording injuries that were incurred off the job and then were
aggravated on the job (see, e.g., Exs. 15: 60, 80, 95, 107, 176, 201,
204, 213, 281, 308, 313, 338, 368, 375, 395, 396, 406, 424, 427, 428,
441). The National Roofing Contractors Association (NRCA) commented
that "[t]his definition [includes] aggravating a pre-existing
condition. While NRCA believes that the exemptions provided [in the
proposed rule] are a step in the right direction, this provision could
require that an employer record an injury that originally occurred
outside the employer's workplace. The motion or activity that
aggravated the injury may not represent any substantial hazard, yet
would still be recorded" (Ex. 15: 441). The United Parcel Service (Ex.
15: 424) objected to the inclusion of the concept of aggravation in the
definition of work-relatedness:

[a]nother flaw in the proposal arises from its proposed
recording requirement in the case of "aggravation" of prior
conditions. As drafted, the rule would require reporting as an
occupational injury or illness a musculoskeletal condition arising
away from work which becomes aggravated by performing job duties
(i.e., the job increases discomfort), when accompanied by swelling
or inflammation. Thus, an employee who hurts his wrist playing
tennis on the weekend and who returns to his word processing job
Monday would have a reportable MSD under the rule. With such
criteria for recordation, reported occupational injuries and
illnesses would skyrocket, and yet most often these reports would
reflect conditions arising away from work.

The Food Distributors International (Ex. 15: 368) recommended:

[i]t is very important that injuries that are not truly
work-related not be the subject of mandatory recording. For example, if
an employee were injured off the job and came to work to "try it
out" (i.e., to see if he or she was capable of performing the
normal job functions), resulting pain might be seen as
"aggravation" and become recordable on that basis. The true source
of injury, however, would be outside the workplace, and recording
would produce an artificially inflated rate of injuries and
illnesses, and a profile that was inaccurate.

Several commenters were concerned about the aggravation of
preexisting injuries in the context of recurrences or new cases (see,
e.g., Exs. 15: 210, 204, 338) . For example, Caterpillar Inc. (Ex. 15:
201) stated that:

[b]ack injuries, repetitive motion injuries, and other chronic
conditions which have degenerative or aging causal factors often
recur without a new work accident and further without a new work
accident capable of causing the underlying condition. Even if a new
work accident occurs, the accident should be serious enough to cause
the underlying condition before the new case presumption is
applicable. The effect of this would be to eliminate minor
aggravation of preexisting conditions from consideration as new
injuries.

[a]ggravation of a pre-existing condition should not be
recordable if normal body movements or events cause the aggravation.
For example, a smoker with asthma or other obstructive airway
disease may experience shortness of breath while climbing a flight
of stairs. A person with degenerative disk disease may experience
pain while lifting a normal bag of groceries. If performing similar
activities at work likewise aggravates the condition, it should not
be recordable.

As discussed above, OSHA agrees that non-work-related injuries and
illnesses should not be recorded on the OSHA Log. To ensure that non-work-related cases are not entered on the Log, paragraph
1904.5(b)(2)(ii) requires employers to consider as non-work-related any
injury or illness that "involves signs or symptoms that surface at
work but result solely from a non-work-related event or exposure that
occurs outside the work environment."

The Agency also believes that preexisting injury or illness cases
that have been aggravated by events or exposures in the work
environment represent cases that should be recorded on the Log, because
work has clearly worsened the injury or illness. OSHA is concerned,
however, that there are some cases where work-related aggravation
affects the preexisting case only in a minor way, i.e., in a way that
does not appreciably worsen the preexisting condition, alter its
nature, change the extent of the medical treatment, trigger lost time,
or require job transfer. Accordingly, the final rule requires that
workplace events or exposures must "significantly" aggravate a
pre-existing injury or illness case before the case is presumed
to be work-related. Paragraph 1904.5(a) states that an injury or illness is
considered work-related if "an event or exposure in the work
environment either caused or contributed to the resulting condition or
significantly aggravated a pre-existing injury or illness."

Paragraph 1904.5(b)(4) of the final rule defines aggravation as
significant if the contribution of the aggravation at work is such that
it results in tangible consequences that go beyond those that the
worker would have experienced as a result of the preexisting injury or
illness alone, absent the aggravating effects of the workplace. Under
the final rule, a preexisting injury or illness will be considered to
have been significantly aggravated, for the purposes of OSHA injury and
illness recordkeeping, when an event or exposure in the work
environment results in: (i) Death, providing that the preexisting
injury or illness would likely not have resulted in death but for the
occupational event or exposure; (ii) Loss of consciousness, providing
that the preexisting injury or illness would likely not have resulted
in loss of consciousness but for the occupational event or exposure;
(iii) A day or days away from work or of restricted work, or a job
transfer that otherwise would not have occurred but for the
occupational event or exposure; or (iv) Medical treatment where no
medical treatment was needed for the injury or illness before the
workplace event or exposure, or a change in the course of medical
treatment that was being provided before the workplace event or
exposure. OSHA's decision not to require the recording of cases
involving only minor aggravation of preexisting conditions is
consistent with the Agency's efforts in this rulemaking to require the
recording only of non-minor injuries and illnesses; for example, the
final rule also no longer requires employers to record minor illnesses
on the Log.

Preexisting Conditions

Paragraph 1904.5(b)(5) stipulates that pre-existing conditions, for
recordkeeping purposes, are conditions that resulted solely from a
non-work-related event or exposure that occurs outside the employer's work
environment. Pre-existing conditions also include any injury or illness
that the employee experienced while working for another employer.

Off Premises Determinations

Employees may be injured or become ill as a result of events or
exposures away from the employer's establishment. In these cases, OSHA
proposed to consider the case work-related only if the employee was
engaged in a work activity or was present as a condition of employment
(61 FR 4063). In the final rule, (paragraph 1904.5(b)(1)) the same
concept is carried forward in the definition of the work environment,
which defines the environment as including the establishment and any
other location where one or more employees are working or are present
as a condition of their employment.

Thus, when employees are working or conducting other tasks in the
interest of their employer but at a location away from the employer's
establishment, the work-relatedness of an injury or illness that arises
is subject to the same decision making process that would occur if the
case had occurred at the establishment itself. The case is work-related
if one or more events or exposures in the work environment either
caused or contributed to the resulting condition or significantly
aggravated a pre-existing condition, as stated in paragraph 1904.5(a).
In addition, the exceptions for determining work relationship at
paragraph 1904.5(b)(2) and the requirements at paragraph 1904.5(b)(3)
apply equally to cases that occur at or away from the establishment.

As an example, the work-environment presumption clearly applies to
the case of a delivery driver who experiences an injury to his or her
back while loading boxes and transporting them into a building. The
worker is engaged in a work activity and the injury resulted from an
event -- loading/unloading -- occurring in the work environment. Similarly,
if an employee is injured in an automobile accident while running
errands for the company or traveling to make a speech on behalf of the
company, the employee is present at the scene as a condition of
employment, and any resulting injury would be work-related.

Employees on Travel Status

The final rule continues (at § 1904.5(b)(6)) OSHA's longstanding
practice of treating injuries and illnesses that occur to an employee
on travel status as work-related if, at the time of the injury or
illness, the employee was engaged in work activities "in the interest
of the employer." Examples of such activities include travel to and
from customer contacts, conducting job tasks, and entertaining or being
entertained if the activity is conducted at the direction of the
employer.

The final rule contains three exceptions for travel-status
situations. The rule describes situations in which injuries or
illnesses sustained by traveling employees are not considered
work-related for OSHA recordkeeping purposes and therefore do not have to be
recorded on the OSHA 300 Log. First, when a traveling employee checks
into a hotel, motel, or other temporary residence, he or she is
considered to have established a "home away from home." At this time,
the status of the employee is the same as that of an employee working
at an establishment who leaves work and is essentially "at home".
Injuries and illnesses that occur at home are generally not considered
work related. However, just as an employer may sometimes be required to
record an injury or illness occurring to an employee working in his or
her home, the employer is required to record an injury or illness
occurring to an employee who is working in his or her hotel room (see
the discussion of working at home, below).

Second, if an employee has established a "home away from home"
and is reporting to a fixed worksite each day, the employer does not
consider injuries or illnesses work-related if they occur while the
employee is commuting between the temporary residence and the job
location. These cases are parallel to those involving employees
commuting to and from work when they are at their home location, and do
not have to be recorded, just as injuries and illnesses that occur
during normal commuting are not required to be recorded.

Third, the employer is not required to consider an injury or
illness to be work-related if it occurs while the employee is on a
personal detour from the route of business travel. This exception
allows the employer to exclude injuries and illnesses that occur when
the worker has taken a side trip for personal reasons while on a
business trip, such as a vacation or sight-seeing excursion, to visit
relatives, or for some other personal purpose.

The final rule's travel-related provisions (at paragraph
1904.5(b)(6)) are essentially identical to those proposed (63 FR 4063),
with only minor editorial changes, and are also parallel to those for
determining the work-relationship of traveling employees under the
former recordkeeping system (Ex. 2, pp. 36, 37). OSHA received various
comments and suggestions about how best to determine work relationship
for traveling employees. A few commenters endorsed OSHA's proposed
approach (see, e.g., Exs. 15: 199, 396, 406). Other commenters believe,
however, that employer control of, or the authority to control, the
work environment should be determinative because activities outside the
employer's control fall outside the scope of the employer's safety and
health program (see, e.g., Exs. 15: 335, 396, 409, 424). The comments
of the Dow Chemical Company (Ex. 15: 335) are typical of these views:

[t]ravel on public carriers such as commercial airlines, trains,
and taxi services or pre-existing conditions that are aggravated
during normal unencumbered body motions, or injuries that occur off-the-job but do not impair someone until they arrive at work are all
beyond the control of the employer and the scope of any safety and
health program. The commercial plane that crashes while the employee
was flying on company business or the taxi accident while the
employee was trying to get to the airport to fly on company business
are events which, while tragic, are beyond the scope of an
employer's control and beyond the reasonable reach of that
employer's safety and health program.

However, as discussed in the Legal Authority section and the
introduction to the work-relationship section of the preamble, OSHA has
decided not to limit the recording of occupational injuries and
illnesses to those cases that are preventable, fall within the
employer's control, or are covered by the employer's safety and health
program. The issue is not whether the conditions could have, or should
have, been prevented or whether they were controllable, but simply
whether they are occupational, i.e., are related to work. This is true
regardless of whether the employee is injured while on travel or while
present at the employer's workplace. An employee who is injured in an
automobile accident or killed in an airline crash while traveling for
the company has clearly experienced a work-related injury that is
rightfully included in the OSHA injury and illness records and the
Nation's occupational injury and illness statistics. As the American
Industrial Hygiene Association (Ex. 15: 153) remarked:

The workforce is increasingly made up of service sector jobs.
Computers, materials movement, travel, violence are all emerging and
increasing sources of occupational injury and illness. Many of these
newer trends in cases may not involve lost workdays, but are
recordable and significant to the workforce none the less. Many of
the clean, non-manufacturing employers who were traditionally exempt
from recordkeeping have risk in these and other emerging areas about
which OSHA should be collecting data.

AAMA agrees with OSHA that injuries/illnesses to employees
during travel status are work-related and recordable. However, AAMA
takes strong exception to the inclusion of 'entertaining or being
entertained for the purpose of transacting, discussing, or promoting
business.' We find the notion of recording an illness for an
employee, while he/she was engaged in a business related dinner, and
subsequently suffering acute onset of diarrhea leading to
hospitalization for gastroenteritis, to be inappropriate. OSHA needs
to remove this obligation from the final rule. (Ex. 15: 409)

OSHA does not agree with this comment, because the Agency believes
that employees who are engaged in management, sales, customer service
and similar jobs must often entertain clients, and that doing so is a
business activity that requires the employee to work at the direction
of the employer while conducting such tasks. If the employee is injured
or becomes ill while engaged in such work, the injury or illness is
work-related and should be recorded if it meets one or more of the
other criteria (death, medical treatment, etc.). The gastroenteritis
example provided by the AAMA is one type of injury or illness that may
occur in this situation, but employees are also injured in accidents
while transporting clients to business-related events at the direction
of the employer or by other events or exposures arising in the work
environment.

On the other hand, not all injuries and illnesses sustained in the
course of business-related entertainment are reportable. To be
recordable, the entertainment activity must be one that the employee
engages in at the direction of the employer. Business-related
entertainment activities that are undertaken voluntarily by an employee
in the exercise of his or her discretion are not covered by the rule.
For example, if an employee attending a professional conference at the
direction of the employer goes out for an evening of entertainment with
friends, some of whom happen to be clients or customers, any injury or
illness resulting from the entertainment activities would not be
recordable. In this case, the employee was socializing after work, not
entertaining at the direction of the employer. Similarly, the fact that
an employee joins a private club or organization, perhaps to
"network" or make business contacts, does not make any injury that
occurs there work-related.

Two commenters recommended that OSHA eliminate the exceptions for
determining work-relationship while employees are on travel and simply
require all injuries and illnesses occurring while an employee is on
travel status to be considered work-related (Exs. 15: 350, 418). For
example, the AFL-CIO (Ex. 15: 418) suggested:

We would also strongly encourage the Agency to re-evaluate
[proposed] Appendix A Section C "Travel Status". The AFL-CIO
believes that employees in "travel status" (e.g., traveling on
company business) should be considered engaged in work-related
activities during ALL of their time spent on the trip. This includes
all travel, job tasks, entertaining and other activities occurring
during "travel status."

OSHA believes that expanding the concept of work-related travel to
include all of the time the worker spends on a trip would be
inconsistent with the tests of work-relationship governing the
recording of other injuries and illnesses and would therefore skew the
statistics and confuse employers. As the Dow Chemical Company (Ex. 15:
335) stated:

While the employee is traveling for the benefit of the company,
it cannot be said that 100% of their time is engaged in work-related
activities. Employees engage in personal and social activities while
traveling on company business that is not for the direct benefit of
the company nor a condition of employment and which cannot be
impacted by an employer's safety or health program. Often there is
"free time" while traveling and employees engage in a myriad of
activities such as shopping, sightseeing, dining out with friends or
family that may be in the area, and the like. These are activities
that do not benefit the company and are outside the company's
control or reasonable reach of its safety and health programs. These
are activities which, if the employee were engaged in them at their
normal work location, would not be recordable; but just by the fact
that they happen to be traveling for business purposes raises these
otherwise non-recordable cases into those subject to the
recordkeeping rule.

OSHA agrees with Dow that there are situations where an injury or
illness case involving an employee who is on travel status should be
excluded from the records. There is no value in recording injuries and
illnesses that would not be recorded under non-travel circumstances.
For example, there is no value to including in the statistics an injury
sustained by an employee who slips and falls in a motel room shower or
who is injured in an automobile accident while on personal business, or
becomes the victim of random street violence while doing personal
shopping on a business trip. OSHA is therefore continuing the Agency's
practice of excluding certain cases while employees are in travel
status and applying the exceptions to the geographic presumption in the
final rule to those occurring while the worker is traveling.

The Department of Energy (Ex. 15: 163) expressed a concern about
overseas travel, remarking "For employees who travel in the U.S., the
standard makes sense. For employees who travel out of the country,
additional burdens to them are generally incurred. Travelers to
tropical locations or other areas with different fauna and microbes may
incur diseases that are not indigenous to the U.S." In response, OSHA
notes that the recordkeeping regulation does not apply to travel
outside the United States because the OSH Act applies only to the
confines of the United States (29 U.S.C. § 652(4)) and not to
foreign operations. Therefore, the OSHA recordkeeping regulation does
not apply to non-U.S. operations, and injuries or illnesses that may
occur to a worker traveling outside the United States need not be
recorded on the OSHA 300 Log.

Working at Home

The final rule also includes provisions at § 1904.5(b)(7) for
determining the work-relatedness of injuries and illnesses that may
arise when employees are working at home. When an employee is working
on company business in his or her home and reports an injury or illness
to his or her employer, and the employee's work activities caused or
contributed to the injury or illness, or significantly aggravated a
pre-existing injury, the case is considered work-related and must be
further evaluated to determine whether it meets the recording criteria.
If the injury or illness is related to non-work activities or to the
general home environment, the case is not considered work-related.

The final rule includes examples to illustrate how employers are
required to record injuries and illnesses occurring at home. If an
employee drops a box of work documents and injures his or her foot, the
case would be considered work-related. If an employee's fingernail was
punctured and became infected by a needle from a sewing machine used to
perform garment work at home, the injury would be considered work-related .
If an employee was injured because he or she tripped on the
family dog while rushing to answer a work phone call, the case would
not be considered work-related. If an employee working at home is
electrocuted because of faulty home wiring, the injury would not be
considered work-related.

This provision is consistent with longstanding Agency practice
under the former recordkeeping system. It was also included in the
proposed rule (63 FR 4063), which read "An injury or illness will be
considered work-related if it occurs while the employee is performing
work for pay or compensation in the home, if the injury or illness is
directly related to the performance of work rather than the general
home environment or setting."

A number of commenters supported OSHA's proposed approach to
recording the injuries and illnesses of employees who work at home
(see, e.g., Exs. 15: 31, 146, 176, 231, 273, 301, 336, 348, 375, 406,
409, 413, 427, 429). The comments of the Council of Community Blood
Centers (CCBC) (Ex. 15: 336) are typical of the views of these
participants:

CCBC believes this is a good rule and should stay on the books.
Accident or illness should be work-related if it occurs at home and
is related to performance of the work, not the general home
environment or setting. Workers often are off the premises in a
variety of situations, such as travel, providing repair services, or
consultation. Just as injuries in these situations are reportable,
so should those during work at home, if authorized by the employer.

Fort Howard strongly opposes OSHA's proposal to consider any
injuries and illnesses as "work-related" if it occurs while the
employee is performing work for pay or compensation in the home if
the injury or illness is directly related to the performance of the
work. Employers have absolutely no control over employees' homes.
They cannot oversee employees who are doing the work nor can they
effectively monitor the manner the work is conducted or the
environment in which it is conducted. OSHA's proposal could place
employers in the role of insuring the home as a safe work
environment. (Ex. 15: 194)

Again, as discussed above, OSHA is concerned that all non-minor
work-related cases be recorded on the Log and become part of the
national statistics, both because these injuries and illnesses provide
information about the safety and health of the work environment to
employers, employees, and safety and health professionals and because
collecting them may allow previously obscured safety and health issues
to be identified. Injuries and illnesses occurring while the employee
is working for pay or compensation at home should be treated like
injuries and illnesses sustained by employees while traveling on
business. The relevant question is whether or not the injury or illness
is work-related, not whether there is some element of employer control.
The mere recording of these injuries and illnesses as work-related
cases does not place the employer in the role of insuring the safety of
the home environment.

The law firm of Leonard, Ralston, Stanton & Remington, Chartered
(Ex. 15: 430) raised questions about OSHA's role when employees perform
office work activities in a home office:

The increasing incidence of home work (or "telecommuting")
raises some interesting issues. For example, does OSHA assume that
its right of inspection extends to an employee's private home? If
so, has the Agency examined the constitutionality of this position?
What control does the Agency assume an employer has over working
conditions in a private home? Does the Agency expect the employer to
inspect its employees' homes to identify unsafe conditions? Must the
employer require an employee to correct unsafe conditions in the
home (e.g., frayed carpet which presents a tripping hazard;
overloaded electrical wiring or use of extension cords; etc.) as a
condition of employment? If so, who must pay the cost of necessary
home improvements?

OSHA has recently issued a compliance directive (CPL 2-0.125)
containing the Agency's response to many of the questions raised by
this commenter. That document clarifies that OSHA will not conduct
inspections of home offices and does not hold employers liable for
employees' home offices. The compliance directive also notes that
employers required by the recordkeeping rule to keep records "will
continue to be responsible for keeping such records, regardless of
whether the injuries occur in the factory, in a home office, or
elsewhere, as long as they are work-related, and meet the recordability
criteria of 29 CFR Part 1904."

With more employees working at home under various telecommuting and
flexible workplace arrangements, OSHA believes that it is important to
record injuries and illnesses attributable to work tasks performed at
home. If these cases are not recorded, the Nation's injury and illness
statistics could be skewed. For example, placing such an exclusion in
the final rule would make it difficult to determine if a decline in the
overall number or rate of occupational injuries and illnesses is
attributable to a trend toward working at home or to a change in the
Nation's actual injury and illness experience. Further, excluding these
work-related injuries and illnesses from the recordkeeping system could
potentially obscure previously unidentified causal connections between
events or exposures in the work environment and these incidents. OSHA
is unwilling to adopt an exception that would have these potential
effects. As the BF Goodrich Company (Ex. 15: 146) said, "[s]pecific
criteria to address employee work-at-home situations is appropriate to
assure consistent reporting in our changing work environment."

Section 1904.6 Determination of New Cases

Employers may occasionally have difficulty in determining whether
new signs or symptoms are due to a new event or exposure in the
workplace or whether they are the continuation of an existing
work-related injury or illness. Most occupational injury and illness cases
are fairly discrete events, i.e., events in which an injury or acute
illness occurs, is treated, and then resolves completely. For example,
a worker may suffer a cut, bruise, or rash from a clearly recognized
event in the workplace, receive treatment, and recover fully within a
few weeks. At some future time, the worker may suffer another cut,
bruise or rash from another workplace event. In such cases, it is clear
that the two injuries or illnesses are unrelated events, and that each
represents an injury or illness that must be separately evaluated for its
recordability.

However, it is sometimes difficult to determine whether signs or
symptoms are due to a new event or exposure, or are a continuance of an
injury or illness that has already been recorded. This is an important
distinction, because a new injury or illness requires the employer to
make a new entry on the OSHA 300 Log, while a continuation of an old
recorded case requires, at most, an updating of the original entry.
Section 1904.6 of the final rule being published today explains what
employers must do to determine whether or not an injury or illness is a
new case for recordkeeping purposes.

The basic requirement at § 1904.6(a) states that the employer
must consider an injury or illness a new case to be evaluated for
recordability if (1) the employee has not previously experienced a
recorded injury or illness of the same type that affects the same part
of the body, or (2) the employee previously experienced a recorded
injury or illness of the same type that affected the same part of the
body but had recovered completely (all signs and symptoms of the
previous injury or illness had disappeared) and an event or exposure in
the work environment caused the injury or illness, or its signs or
symptoms, to reappear.

The implementation question at § 1904.6(b)(1) addresses chronic
work-related cases that have already been recorded once and
distinguishes between those conditions that will progress even in the
absence of workplace exposure and those that are triggered by events in
the workplace. There are some conditions that will progress even in the
absence of further exposure, such as some occupational cancers,
advanced asbestosis, tuberculosis disease, advanced byssinosis,
advanced silicosis, etc. These conditions are chronic; once the disease
is contracted it may never be cured or completely resolved, and
therefore the case is never "closed" under the OSHA recordkeeping
system, even though the signs and symptoms of the condition may
alternate between remission and active disease.

However, there are other chronic work-related illness conditions,
such as occupational asthma, reactive airways dysfunction syndrome
(RADs), and sensitization (contact) dermatitis, that recur if the ill
individual is exposed to the agent (or agents, in the case of cross-reactivities or RADs) that triggers the illness again. It is typical,
but not always the case, for individuals with these conditions to be
symptom-free if exposure to the sensitizing or precipitating agent does
not occur.

The final rule provides, at paragraph (b)(1), that the employer is
not required to record as a new case a previously recorded case of
chronic work-related illness where the signs or symptoms have recurred
or continued in the absence of exposure in the workplace. This
paragraph recognizes that there are occupational illnesses that may be
diagnosed at some stage of the disease and may then progress without
regard to workplace events or exposures. Such diseases, in other words,
will progress without further workplace exposure to the toxic
substance(s) that caused the disease. Examples of such chronic work-related diseases are silicosis, tuberculosis, and asbestosis. With
these conditions, the ill worker will show signs (such as a positive TB
skin test, a positive chest roentgenogram, etc.) at every medical
examination, and may experience symptomatic bouts as the disease
progresses.

Paragraph 1904.6(b)(2) recognizes that many chronic occupational
illnesses, however, such as occupational asthma, RADs, and contact
dermatitis, are triggered by exposures in the workplace. The difference
between these conditions and those addressed in paragraph 1904.6(b)(1)
is that in these cases exposure triggers the recurrence of symptoms and
signs, while in the chronic cases covered in the previous paragraph,
the symptoms and signs recur even in the absence of exposure in the
workplace. This distinction is consistent with the position taken by
OSHA interpretations issued under the former recordkeeping rule (see
the Guidelines discussion below). The Agency has included provisions
related to new cases/continuations of old cases in the final rule to
clarify its position and ensure consistent reporting.

Paragraph 1904.6(b)(3) addresses how to record a case for which the
employer requests a physician or other licensed health care
professional (HCP) to make a new case/continuation of an old case
determination. Paragraph (b)(3) makes clear that employers are to
follow the guidance provided by the HCP for OSHA recordkeeping
purposes. In cases where two or more HCPs make conflicting or differing
recommendations, the employer is required to base his or her decision
about recordation based on the most authoritative (best documented,
best reasoned, or most persuasive) evidence or recommendation.

The final rule's provisions on the recording of new cases are
nearly identical to interpretations of new case recordability under the
former rule. OSHA has historically recognized that it is generally an
easier matter to differentiate between old and new cases that involve
injuries than those involving illnesses: the Guidelines stated that
"the aggravation of a previous injury almost always results from some
new incident involving the employee * * * [w]hen work-related, these
new incidents should be recorded as new cases on the OSHA forms,
assuming they meet the criteria for recordability * * *" (Ex. 2, p.
31). However, the Guidelines also stated that "certain illnesses, such
as silicosis, may have prolonged effects which recur over time. The
recurrence of these symptoms should not be recorded as a new case on
the OSHA forms. * * * Some occupational illnesses, such as certain
dermatitis or respiratory conditions, may recur as the result of new
exposures to sensitizing agents, and should be recorded as new cases."

OSHA developed and included specific guidance for evaluating when
cumulative trauma disorders (CTDs) (ergonomic injuries and illnesses,
now known as musculoskeletal disorders, or MSDs) should be recorded as
new cases in the Ergonomics Program Management Guidelines For
Meatpacking Plants (Ex. 11, p. 15) which were published in 1990. These
Guidelines provided:

If and when an employee who has experienced a recordable CTD
becomes symptom free (including both subjective symptoms and
physical findings), any recurrence of symptoms establishes a new
case. Furthermore, if the worker fails to return for medical care
within 30 days, the case is presumed to be resolved. Any visit to a
health care provider for similar complaints after the 30-day
interval "implies reinjury or reexposure to a workplace hazard and
would represent a new case."

Thus, the former rule had different "new case" criteria for
musculoskeletal disorders than for other injuries and illnesses. (For
the final rule's recording criteria for musculoskeletal disorders, see
Section 1904.12.)

OSHA's recordkeeping NPRM proposed a single approach to the
identification of new cases for all injuries and illnesses, including
musculoskeletal disorders. The proposal would have required the
recurrence of a pre-existing injury or illness to be considered a new
case to evaluate for recordability if (1) it resulted from a
new work event or exposure, or (2) 45 days had elapsed since medical
treatment, work restriction, or days away from work had ceased, and the
last sign or symptom had been experienced. The proposed approach would,
in effect, have extended the recurrence criteria for musculoskeletal
disorders to all injury and illness cases, but would have increased the
no-medical-intervention interval from 30 to 45 days. A recurrence of a
previous work-related injury or illness would have been presumed, under
the proposed approach, to be a new case if (1) it resulted from a new
work accident or exposure, or (2) 45 days had elapsed since medical
treatment had been administered or restricted work activity or days
away had occurred and since the last sign or symptom had been
experienced. This proposed presumption would have been rebuttable if
there was medical evidence indicating that the prior case had not been
resolved. In the proposal, OSHA also asked for input on the following
questions related to new case recording:

OSHA solicits comment on the appropriateness of the 45-day
interval. Is 45 days too short or long of a period? If so, should
the period be 30 days? 60 days? 90 days? or some other time period?
Should different conditions (e.g. back cases, asthma cases etc.)
have different time intervals for evaluating new cases?

OSHA is also seeking input for an improved way to evaluate new
cases. Should a new category of cases be created to capture
information on recurring injuries and illnesses? One option is to
add an additional "check box" column to the proposed OSHA Form 300
for identifying those cases that are recurrences of previously
recorded injuries and illnesses. This would allow employers,
employees and OSHA inspectors to differentiate between one time
cases and those that are recurrent, chronic conditions. This
approach may help to remove some of the stigma of recording these
types of disorders and lead to more complete records. OSHA solicits
input on this approach. Will a recurrence column reduce the stigma
of recording these types of cases? Should recurrences be included in
the annual summaries? Should a time limit be used to limit the use
of a recurrence column?

In response to the views and evidence presented by commenters to
the record, OSHA has decided not to adopt the proposed approach to the
recording of new/recurring cases in the final rule. Commenters
expressed a wide variety of views about the recording of recurring
injury and illness cases. Some commenters favored the proposed approach
as drafted. Others, however, objected to it on many grounds: (1) the
time limit should be longer or shorter than the 45 days proposed; (2)
the proposed approach would result in under- or overreporting; (3) it
would conflict with workers' compensation requirements; (4) it was too
restrictive (5) it would encourage excessive use of the health care
system; and (6) it should be replaced by a physician or other licensed
health care professional's opinion.

TFI agrees with OSHA's proposed 45 day criterion for the
recording of new cases. Concerning OSHA's solicitation of comments
on whether different conditions should have different evaluation
periods, TFI encourages OSHA to adopt a single time period for all
conditions. Different evaluation periods for different conditions
will lead to complexity and confusion without any resulting benefit
to recordkeeping (Ex. 15: 154).

We do not agree, however, with the second criterion of a symptom
free 45 day period following medical treatment, restriction, or days
away from work. This criterion fails to take into account the
persistent nature of many chronic or recurring conditions, i.e.,
back strains, musculoskeletal disorders, where the symptoms may
disappear for a period of time, but the underlying conditions are
still present. If adopted, this criterion could cause injury and
illness data to be artificially inflated with the onset of "new"
cases, which in fact are recurrences of existing conditions. This in
turn could lead to false epidemics and a diversion of resources from
more legitimate workplace concerns.

On the other hand, William K. Principe of Constangy, Brooks &
Smith, LLC (Ex. 15: 428) was concerned that the proposed method would
result in fewer recordable cases:

Since many employees will report that they continued to
experience symptoms or that they continue to have good days and bad
days, the new rule will result in many fewer recordable CTD
[cumulative trauma disorder] cases. In fact, at some hand-intensive
manual operations, the number of CTD cases should be drastically
reduced under the proposal that 45 days must elapse since the last
symptom. There is something fundamentally wrong with a recordkeeping
system that one year shows a high incidence of CTDs and the next
shows a dramatic decline, when the underlying conditions remain
virtually identical.

United Parcel Service (Ex. 15: 424) stated that there should be no
time limit to determining whether or not a case is a recurrence:

In UPS's experience, however, it is a simple process to
determine, by medical referral or by examining prior medical
history, whether a condition is a recurrence. This has long been the
practice, and indeed the [proposal] contemplates it will remain the
practice through the first 44 days. It does not become any more
complex on the 45th, 50th, or 100th day; and if in an individual
employer's judgment it does, then the employer may of course report
the condition as a new injury.

Three commenters disapproved of OSHA's approach because it would
have been applicable to all recurrences and they believe that each case
must be evaluated on its own merits (Exs. 15: 78, 184, 203). The
International Dairy Foods Association (IDFA) described this concern
succinctly: "Each injury has its own resolution based on the injury,
illness, degree, and numerous other factors that are characteristic of
the individual. As such, it is impossible for OSHA or anyone else to set a
valid number of days even if the resolution period is set on the basis
of the type of illness/injury" (Ex. 15: 203).

In addition, the proposed 45-day approach was interpreted
differently by different commenters. For example, David E. Jones of the
law firm Ogletree, Deakins, Nash, Smoak & Stewart (ODNSS) suggested:

The words "either" and "or" * * * should be deleted because
an aggravation of the previously recorded injury or illness brought
about within the 45-day period would require the entry of a new case
at that time, thus negating the 45-day rule, leading to the adverse
result that the 45-day rule otherwise would rectify. Accordingly,
ODNSS recommends * * * "A recurrence of a previous work-related
injury or illness is a new case when it (1) results from a new work
event or exposure and (2) 45 days have elapsed since medical
treatment, restricted work activity, or days away from work (as
applicable) were discontinued and the employee has been symptom-free
(including both subjective symptoms and physical findings) (emphasis
added) (Ex. 15: 406).

In the final rule, OSHA has decided against the proposed approach
of determining case resolution based on a certain number of days during
which the injured or ill employee did not lose time, receive treatment,
have signs or symptoms, or be restricted to light duty. OSHA agrees
with those commenters who argued that the proposed approach was too
prescriptive and did not allow for the variations that naturally exist
from one injury and illness case to the next. Further, the record
contains no convincing evidence to support a set number of days as
appropriate. OSHA thus agrees with those commenters who pointed out
that adoption of a fixed time interval would result in the
overrecording of some injury and illness cases and the underrecording
of others, and thus would impair the quality of the records.

Further, OSHA did not intend to create an "injury free" time zone
during which an injury or illness would not be considered a new case,
regardless of cause, as ODNSS suggested. Instead, OSHA proposed that a
case be considered a new case if either condition applied: the case
resulted from a new event or exposure or 45 days had elapsed without
signs, symptoms, or medical treatment, restricted work, or days away
from work. There are clearly cases where an event or exposure in the
workplace would be cause for recording a new case. A new injury may
manifest the same signs and symptoms as the previous injury but still
be a new injury and not a continuation of the old case if, for example,
an employee sustains a fall and fractures his or her wrist, and four
months later falls again and fractures the wrist in the same place.
This occurrence is not a continuation of the fracture but rather a new
injury whose recordability must be evaluated. The final rule's approach
to recurrence/new case determinations avoids this and other recording
problems because it includes no day count limit and relies on one of
the basic principles of the recordkeeping system, i.e., that injuries
or illnesses arising from events or exposures in the workplace must be
evaluated for recordability.

In response to those commenters who raised issues about
inconsistency between the OSHA system and workers' compensation, OSHA
notes that there is no reason for the two systems, which serve
different purposes (recording injuries and illnesses for national
statistical purposes and indemnifying workers for job-related injuries
and illnesses) to use the same definitions. Accordingly, the final rule
does not rely on workers' compensation determinations to identify
injuries or illness cases that are to be considered new cases for
recordkeeping purposes.

Another group of commenters argued that the 45-day recording
requirement would lead employers to spend money on unnecessary and
costly health care (see, e.g., Exs. 15: 136, 137, 141, 224, 266, 278,
305, 346, 348, 375). The views of the American Petroleum Institute
(API) are representative: "OSHA's proposal would also add
substantially to employers' costs since it could require employees to
make frequent trips to a health care professional, even if symptom
free, just to avoid being recorded repeatedly on the OSHA log as new
cases" (Ex. 15: 375). Union Carbide Corporation (Ex. 15: 396) also
remarked on the proposed approach's potential incentive for medical
follow-up, but viewed such an incentive as a positive phenomenon,
stating "One benefit [of the proposed approach] is that it encourages
medical follow-up for the employee." Although the proposed approach
would not have "required" an employer to send a worker to a physician
or other licensed health care professional, and OSHA is not persuaded
that employers would choose to spend money in this way merely to avoid
recording an occasional case as a new case, elimination of any set
day-count interval from the final rule will also have made the concerns of
these commenters moot.

OSHA also received a number of suggestions about the role of
physicians and other licensed health care professionals (HCP) in new
case determinations. A number of commenters recommended that the
decision to record should be based solely on the opinions of a
physician or other licensed health care professional (see, e.g., Exs.
33: 15: 39, 95, 107, 119, 127, 133, 225, 289, 332, 335, 341, 387, 424,
440). The National Grain and Feed Association, the National Oilseed
Processors Association, and the Grain Elevator and Processing Society
(Ex. 15: 119) commented as a group and recommended that "[r]elying on
a physician's opinion rather than an arbitrary timeframe would simplify
recordkeeping and help ensure that the records are consistent with
existing and accepted workers' compensation plans."

Other commenters recommended that, if OSHA adopted a day count time
limit, the rule should specifically allow a physician's opinion to be
used to refute a new case determination (see, e.g., Exs. 15: 65, 181,
184, 203). Several others simply asked OSHA to provide more guidance on
what type of medical evidence could be used in new case determinations
(see, e.g., Exs. 15: 176, 231, 273, 301, 430). The National Wholesale
Druggists' Association (NWDA) suggested that "OSHA should also include
a provision that the employee obtain written approval from a doctor
that the employee's condition has been resolved before going back to
work. Determining the end of treatment should be left in the hands of a
medical professional and OSHA should require some type of documentation
to that effect" (Ex. 15: 185).

OSHA has not included any provisions in the final rule that require
an employer to rely on a physician or other licensed health care
professional or that tell a physician or other licensed health care
professional how to treat an injured or ill worker, or when to begin or
end such treatment. In the final rule OSHA does require the employer to
follow any determination a physician or other licensed health care
professional has made about the status of a new case. That is, if such
a professional has determined that a case is a new case, the employer
must record it as such. If the professional determines that the case is
a recurrence, rather than a new case, the employer is not to record it
a second time. In addition, the rule does not require the employee, or
the employer, to obtain permission from the physician or other licensed
health care professional before the employee can return to work. OSHA
believes that the employer is capable of, and often in the best
position to, make return-to-work decisions.

Southern California Edison (Ex. 15: 111) expressed concern that
imposing a day limit would not take differences between types of injuries
and illnesses into account, stating "A recurrence of a previous work-related
injury or illness should only be considered a new case when the injury or
illness has completely healed. Severe muscle and nerve damage can take
many weeks or months to properly heal." The final rule takes such differences
into account, as follows. If the previous injury or illness has not healed
(signs and symptoms have not resolved), then the case cannot be considered
resolved. The employer may make this determination or may rely on the
recommendation of a physician or other licensed health care
professional when doing so. Clearly, if the injured or ill employee is
still exhibiting signs or symptoms of the previous injury or illness,
the malady has not healed, and a new case does not have to be recorded.
Similarly, if work activities aggravate a previously recorded case,
there is no need to consider recording it again (although there may be
a need to update the case information if the aggravation causes a more
severe outcome than the original case, such as days away from work).

The Quaker Oats Company (Ex. 15: 289) suggested that employers
should be permitted by the rule to decide whether a given case was a
new case or not, without requirements in the rule:

The 45 day interval on determining if a case is a new one or
should be counted under a previous injury should be left to the
discretion of the employer. They have the most intimate knowledge of
the work environment, medical treatment of the affected employee and
the status of their work-related injury or illness. I will agree
that it is a difficult matter to decide and to assure consistency
throughout industry * * * I believe that any number of days would
simply be an arbitrary attempt at quantifying something that is best
left to the medical judgment of a healthcare professional.

Under the OSHA recordkeeping system, the employer is always the
responsible party when it comes to making the determination of the
recordability of a given case. However, if OSHA did not establish
consistent new case determination criteria, a substantial amount of
variability would be introduced into the system, which would undermine
the Agency's goals of improving the accuracy and consistency of the
Nation's occupational injury and illness data. Accordingly, OSHA has
not adopted this suggested approach in the final rule.

A number of commenters argued that the occurrence of a new event,
exposure, or incident should be required to trigger the recording of a
new case (see, e.g., Exs. 33, 15: 102, 171, 176, 231, 273, 301, 307,
308, 405, 410, 413, 425). Representative of these comments was one from
the Voluntary Protection Programs Participants' Association (VPPPA),
which recommended that OSHA "adopt a definition for new case that
requires the occurrence of a new work-related event to trigger a new
case. In the absence of this, the case would be considered recurring"
(Ex. 15: 425). OSHA agrees with the VPPPA that if no further event or
exposure occurs in the workplace to aggravate a previous injury or
illness, a new case need not be recorded. However, if events or
exposures at work cause the same symptoms or signs to recur, the final
rule requires employers to evaluate the injury or illness to see if it
is a new case and is thus recordable.

The OSHA statistical system is designed to measure the incidence,
rather than prevalence, of occupational injury and illness. Incidence
measures capture the number of new occupational injuries and illnesses
occurring in a given year, while prevalence measures capture the number
of such cases existing in a given year (prevalence measures thus
capture cases without regard to the year in which they onset).
Prevalence measures would therefore capture all injuries and illnesses
that occurred in a given year as well as those unresolved injuries and
illnesses that persist from previous years. The difference is
illustrated by the following cases: (1) A worker experiences a cut that
requires sutures and heals completely before the year ends; this injury
would be captured both by an incidence or prevalence measure for that
particular year. (2) Another worker retired last year but continues to
receive medical treatment for a work-related respiratory illness that
was first recognized two years ago. This case would be captured in the
year of onset and each year thereafter until it resolves if a
prevalence measure is used, but would be counted only once (in the year
of onset) if an incidence measure is used.

Because the OSHA system is intended to measure the incidence of
occupational injury and illness, each individual injury or illness
should be recorded only once in the system. However, an employee can
experience the same type of injury or illness more than once. For
example, if a worker cuts a finger on a machine in March, and is then
unfortunate enough to cut the same finger again in October, this worker
has clearly experienced two separate occupational injuries, each of
which must be evaluated for its recordability. In other cases, this
evaluation is not as simple. For example, a worker who performs
forceful manual handling injures his or her back in 1998, resulting in
days away from work, and the case is entered into the records. In 1999
this worker has another episode of severe work-related back pain and
must once again take time off for treatment and recuperation. The
question is whether or not the new symptoms, back pain, are continuing
symptoms of the old injury, or whether they represent a new injury that
should be evaluated for its recordability as a new case. The answer in
this case lies in an analysis of whether or not the injured or ill
worker has recovered fully between episodes, and whether or not the
back pain is the result of a second event or exposure in the workplace,
e.g., continued manual handling. If the worker has not fully recovered
and no new event or exposure has occurred in the workplace, the case is
considered a continuation of the previous injury or illness and is not
recordable.

One reason for the confusion that is apparent in some of the
comments on the proposal's approach to the recording of recurrences may
be the custom that developed over the years of referring to recordable
recurrences of work-related injuries and illnesses as "new cases."
See for example, 61 FR 4037/1 ("employers may be dealing with a re-injury
or recurrence of a previous case and must decide whether the
recurrence is a "new case" or a continuation of the original case.")
The term "new case" tends to suggest to some that the case is totally
original, when in fact new cases for OSHA recordkeeping purposes
include three categories of cases; (1) totally new cases where the
employee has never suffered similar signs or symptoms while in the
employ of that employer, (2) cases where the employee has a preexisting
condition that is significantly aggravated by activities at work and
the significant aggravation reaches the level requiring recordation,
and (3) previously recorded conditions that have healed (all symptoms
and signs have resolved) and then have subsequently been triggered by
events or exposures at work.

Under the former rule and the final rule, both new injuries and
recurrences must be evaluated for their work-relatedness and then for
whether they meet one or more of the recording criteria; when these
criteria are met, the case must be recorded. If the case is a
continuation of a previously recorded case but does not meet the "new
case" criteria, the employer may have to update the OSHA 300 Log entry
if the original case continues to progress, i.e., if the status of the
case worsens. For example, consider a case where an employee has injured
his or her back lifting a heavy object, the injury resulted in medical
treatment, and the case was recorded as a case without restricted work
or days away. If the injury does not heal and the employer subsequently
decides to assign the worker to restricted work activity, the employer
is required by the final rule to change the case classification and to
track the number of days of restricted work. If the case is a previous
work-related injury that did not meet the recording criteria and thus
was not recorded, future developments in the case may require it to be
recorded. For example, an employee may suffer an ankle sprain tripping
on a step. The employee is sent to a health care professional, who does
not recommend medical treatment or restrictions, so the case is not
recorded at that time. If the injury does not heal, however, and a
subsequent visit to a physician results in medical treatment, the case
must then be recorded.

OSHA and employers and employees need data on recurring cases
because recurrence is an important indicator of severity over the long
term. Just as the number of days away is a useful indicator of health
and safety risk at a particular establishment, so is the total number
of injury and illness events and of exposures resulting in health
consequences that occur in an establishment or industry. Further, any
realistic assessment of occupational safety and health conditions
should reflect the fact that some but not all injuries and illnesses
have long-term consequences. In other words, a safety and health
analysis should give less weight to an injury or illness that has a
clear and relatively quick recovery without impairment of any kind and
an injury or illness that is chronic in nature or one that involves
recurring episodes that are retriggered by workplace events or
exposures.

Ignoring the fact that an occupational injury or illness is a
recurrence occasioned by an event or exposure in the workplace would
result in an underestimate of the true extent of occupational injury
and illness and deprive employers, employees, and safety and health
professionals of essential information of use in illness prevention.
The other extreme, requiring employers to record on-going signs or
symptoms repeatedly, even in the absence of an event or exposure in the
workplace, would result in overstating the extent of illness. In terms
of the recordkeeping system, deciding how most appropriately to handle
new cases requires a balanced approach that minimizes both
overrecording and underrecording. OSHA has dealt with this problem in
the final rule by carefully defining the circumstances under which a
chronic and previously recorded injury or illness must be considered
closed and defining the circumstances under which a recurrence is to be
considered a new case and then evaluated to determine whether it meets
one or more of the recordability criteria.

OSHA's proposal to apply a single criterion to the determination of
the recordability of all recurrences of previously recorded injuries
and illnesses received support from several commenters (see, e.g., Exs.
15: 31, 61, 70, 154, 203, 396). The final rule uses one set of criteria
for determining whether any injury or illness, including a
musculoskeletal disorder, is to be treated as a new case or as the
continuation of an "old" injury or illness. First, if the employee
has never had a recorded injury or illness of the same type and
affecting the same part of the body, the case is automatically
considered a new case and must be evaluated for recordability. This
provision will handle the vast majority of injury and illness cases,
which are new cases rather than recurrences or case continuations.
Second, if the employee has previously had a recorded injury or illness
of the same type and affecting the same body part, but the employee has
completely recovered from the previous injury or illness, and a new
workplace event or exposure causes the injury or illness (or its signs
or symptoms) to reappear, the case is a recurrence that the employer
must evaluate for recordability.

The implementation section of § 1904.6 describes these
requirements and includes explanations applying to two special
circumstances. In the first case, paragraph 1904.6(b)(1) the employee
has experienced a chronic injury or illness of a type that will
progress regardless of further workplace exposure. Cases to which this
provision applies are serious, chronic illness conditions such as
occupational cancer, asbestosis, silicosis, chronic beryllium disease,
etc. These occupational conditions generally continue to progress even
though the worker is removed from further exposure. These conditions
may change over time and be associated with recurrences of symptoms, or
remissions, but the signs (e.g., positive chest roentgenogram, positive
blood test) generally continue to be present throughout the course of
the disease.

The second kind of case, addressed in paragraph 1904.6(b)(b)(2),
requires employers to record chronic illness cases that recur as a
result of exposures in the workplace. These conditions might include
episodes of occupational asthma, reactive airways dysfunction syndrome
(RADS), or contact allergic dermatitis, for example.

Paragraph 1904.6(b)(3) recognizes the role of physicians and other
licensed health care professionals that the employer may choose to rely
on when tracking a "new case" or making a continuation of an old case
determination. If a physician or other licensed health care
professional determines that an injury or illness has been resolved,
the employer must consider the case to be resolved and record as a new
case any episode that causes the signs and symptoms to recur as a
result of exposure in the workplace. On the other hand, if the HCP
consulted by the employer determines that the case is a chronic illness
of the type addressed by paragraph 1904.6(b)(1), the employer would not
record the case again. In either case, the employer would evaluate it
for work-relatedness and then determine whether the original entry
requires updating or the case meets the recording criteria. Paragraph
(b)(3) also recognizes that the employer may ask for input from more
than one HCP, or the employer and employee may each do so, and in such
cases, the rule requires the employer to rely on the one judged by the
employer to be most authoritative.

Adding a Recurrence Column to the OSHA 300 Log

In the proposal, OSHA asked commenters whether the Log should
include a column with a check-box that could be marked if a case was a
recurrence of a pre-existing condition (61 FR 4037). Some commenters
supported the proposed approach (see, e.g., Exs. 15: 27, 39, 61, 65,
89, 154, 186, 214, 235, 277, 299, 305, 332, 336). For example, the
National Association of Manufacturers (NAM) suggested that, in lieu of
adopting a 45-day time limit, OSHA should add a column to the Log: "If
the Agency believes there is a need to track the number of recurring
cases, we believe the better approach would be to add a column to the
log which would permit the original entry for each injury or illness to
be updated in the event of a recurrence" (Ex. 15: 305). The American
Association of Homes and Services for the Aging (AAHSA) agreed:

[t]here should be a column on the injury and illness log for
employers to check for reoccurring injuries. This addition would
help the employer to identify possible patterns or problems
associated with a specific job and find solutions. Recommendation:
Add a column to the injury and illness log allowing the employer
to check when an employee is having a repetitive injury or illness
(Ex. 15: 214).

The addition of a column to record recurrent conditions would
not reduce the stigma and would lead to increased health care
provider visits to avoid having an ongoing case labeled as a new
case. * * * I do not see the value of including a new category of
case designation. This runs counter to the simplification objective.

After a review of the comments on this issue, OSHA has decided not
to include such a check-box on the Log. The final rule adds several
columns to the OSHA 300 form to collect data on the number of
restricted workdays and on various types of occupational injuries and
illnesses. The addition of these columns, and the decision to provide
more space on the Log to add information on the case, has used up the
available space on the form. Requiring employers to record recurrences
would also be burdensome and make the rule more complex. Further, OSHA
did not propose such a requirement, and this issue raises questions not
adequately aired in the record. For example, if an employee has
recurring episodes of low back pain, should the employer be required to
record each day the employee experiences such pain as a recurring
injury? OSHA is also unsure how recurrence data should be captured and
used in the Nation's injury and illness statistics. For example, would
a separate data set on recurrences, similar to data on injuries and
illnesses, be produced by the BLS?

OSHA has therefore decided that it is not appropriate to add a
column to the Log to capture data on recurring injuries and illnesses.
However, OSHA recognizes that data on injury and illness recurrence may
be useful to employers and employees at individual worksites and
encourages employers who wish to collect this additional information to
do so; however, the final rule does not require employers to provide
recurrence data on the Log.

Section 1904.7 General Recording Criteria

Section 1904.7 contains the general recording criteria for
recording work-related injuries and illnesses. This section describes
the recording of cases that meet one or more of the following six
criteria: death, days away from work, restricted work or transfer to
another job, medical treatment beyond first aid, loss of consciousness,
or diagnosis as a significant injury or illness by a physician or other
licensed health care professional.

Paragraph 1904.7(a)

Paragraph 1904.7(a) describes the basic requirement for recording
an injury or illness in the OSHA recordkeeping system. It states that
employers must record any work-related injury or illness that meets one
or more of the final rule's general recording criteria. There are six
such criteria: death, days away from work, days on restricted work or
on job transfer, medical treatment beyond first aid, loss of
consciousness, or diagnosis by a physician or other licensed heath care
professional as a significant injury or illness. Although most cases
are recorded because they meet one of these criteria, some cases may
meet more than one criterion as the case continues. For example, an
injured worker may initially be sent home to recuperate (making the
case recordable as a "days away" case) and then subsequently return
to work on a restricted ("light duty") basis (meeting a second
criterion, that for restricted work). (see the discussion in Section
1904.29 for information on how to record such cases.)

Paragraph 1904.7(b)

Paragraph 1904.7(b) tells employers how to record cases meeting
each of the six general recording criteria and states how each case is
to be entered on the OSHA 300 Log. Paragraph 1904.7(b)(1) provides a
simple decision table listing the six general recording criteria and
the paragraph number of each in the final rule. It is included to aid
employers and recordkeepers in recording these cases.

1904.7(b)(2) Death

Paragraph 1904.7(b)(2) requires the employer to record an injury or
illness that results in death by entering a check mark on the OSHA 300
Log in the space for fatal cases. This paragraph also directs employers
to report work-related fatalities to OSHA within 8 hours and cross
references the fatality and catastrophe reporting requirements in
§ 1904.39 of the final rule, Reporting fatalities and multiple
hospitalizations to OSHA.

Paragraph 1904.7(b)(2) implements the OSH Act's requirements to
record all cases resulting in work-related deaths. There were no
comments opposing the recording of cases resulting in death. However,
there were several comments questioning the determination of work-relatedness
for certain fatality cases and the appropriateness of
reporting certain kinds of fatalities to OSHA. These comments are
addressed in the sections of this preamble devoted to work-relationship
and fatality reporting (sections 1904.5 and 1904.39, respectively).

Paragraph 1904.7(b)(3) Days Away From Work

Paragraph 1904.7(b)(3) contains the requirements for recording
work-related injuries and illnesses that result in days away from work
and for counting the total number of days away associated with a given
case. Paragraph 1904.7(b)(3) requires the employer to record an injury
or illness that involves one or more days away from work by placing a
check mark on the OSHA 300 Log in the space reserved for day(s) away
cases and entering the number of calendar days away from work in the
column reserved for that purpose. This paragraph also states that, if
the employee is away from work for an extended time, the employer must
update the day count when the actual number of days away becomes known.
This requirement continues the day counting requirements of the former
rule and revises the days away requirements in response to comments in
the record.

Paragraphs 1904.7(b)(3)(i) through (vi) implement the basic
requirements. Paragraph 1904.7(b)(3)(i) states that the employer is not
to count the day of the injury or illness as a day away, but is to
begin counting days away on the following day. Thus, even though an
injury or illness may result in some loss of time on the day of the
injurious event or exposure because, for example, the employee seeks
treatment or is sent home, the case is not considered a days-away-from-work
case unless the employee does not work on at least one subsequent
day because of the injury or illness. The employer is to begin counting
days away on the day following the injury or onset of illness. This
policy is a continuation of OSHA's practice under the former rule,
which also excluded the day of injury or onset of illness from the day
counts.

Paragraphs 1904.7(b)(3)(ii) and (iii) direct employers how to
record days-away cases when a physician or other licensed health care
professional (HCP) recommends that the injured or ill worker stay at
home or that he or she return to work but the employee chooses not to
do so. As these paragraphs make clear, OSHA requires employers to
follow the physician's or HCP's recommendation when recording the case.
Further, whether the employee works or not is in the control of the
employer, not the employee. That is, if an HCP recommends that the
employee remain away from work for one or more days, the employer is
required to record the injury or illness as a case involving days away
from work and to keep track of the days; the employee's wishes in this
case are not relevant, since it is the employer who controls the
conditions of work. Similarly, if the HCP tells the employee that he or
she can return to work, the employer is required by the rule to stop
counting the days away from work, even if the employee chooses not to
return to work. These policies are a continuation of OSHA's previous
policy of requiring employees to follow the recommendations of health
care professionals when recording cases in the OSHA system. OSHA is
aware that there may be situations where the employer obtains an
opinion from a physician or other health care professional and a
subsequent HCP's opinion differs from the first. (The subsequent
opinion could be that of an HCP retained by the employer or the
employee.) In this case, the employer is the ultimate recordkeeping
decision-maker and must resolve the differences in opinion; he or she
may turn to a third HCP for this purpose, or may make the recordability
decision himself or herself.

Paragraph 1904.7(b)(3)(iv) specifies how the employer is to account
for weekends, holidays, and other days during which the employee was
unable to work because of a work-related injury or illness during a
period in which the employee was not scheduled to work. The rule
requires the employer to count the number of calendar days the employee
was unable to work because of the work-related injury or illness,
regardless of whether or not the employee would have been scheduled to
work on those calendar days. This provision will ensure that a measure
of the length of disability is available, regardless of the employee's
work schedule. This requirement is a change from the former policy,
which focused on scheduled workdays missed due to injury or illness and
excluded from the days away count any normal days off, holidays, and
other days the employee would not have worked.

Paragraph 1904.7(b)(3)(v) tells the employer how to count days away
for a case where the employee is injured or becomes ill on the last day
of work before some scheduled time off, such as on the Friday before
the weekend or the day before a scheduled vacation, and returns to work
on the next day that he or she was scheduled to work. In this
situation, the employer must decide if the worker would have been able
to work on the days when he or she was not at work. In other words, the
employer is not required to count as days away any of the days on which
the employee would have been able to work but did not because the
facility was closed, the employee was not scheduled to work, or for
other reasons unrelated to the injury or illness. However, if the
employer determines that the employee's injury or illness would have
kept the employee from being able to work for part or all of time the
employee was away, those days must be counted toward the days away
total.

Paragraph 1904.7(b)(3)(vi) allows the employer to stop counting the
days away from work when the injury or illness has resulted in 180
calendar days away from work. When the injury or illness results in an
absence of more than 180 days, the employer may enter 180 (or 180+) on
the Log. This is a new provision of the final rule; it is included
because OSHA believes that the "180" notation indicates a case of
exceptional severity and that counting days away beyond that point
would provide little if any additional information.

Paragraph 1904.7(b)(3)(vii) specifies that employers whose
employees are away from work because of a work-related injury or
illness and who then decide to leave the company's employ or to retire
must determine whether the employee is leaving or retiring because of
the injury or illness and record the case accordingly. If the
employee's decision to leave or retire is a result of the injury or
illness, this paragraph requires the employer to estimate and record
the number of calendar days away or on restricted work/job transfer the
worker would have experienced if he or she had remained on the
employer's payroll. This provision also states that, if the employee's
decision was unrelated to the injury or illness, the employer is not
required to continue to count and record days away or on restricted
work/job transfer.

Paragraph 1904.(b)(3)(viii) directs employers how to handle a case
that carries over from one year to the next. Some cases occur in one
calendar year and then result in days away from work in the next year.
For example, a worker may be injured on December 20th and be away from
work until January 10th. The final rule directs the employer only to
record this type of case once, in the year that it occurred. If the
employee is still away from work when the annual summary is prepared
(before February 1), the employer must either count the number of days
the employee was away or estimate the total days away that are expected
to occur, use this estimate to calculate the total days away during the
year for the annual summary, and then update the Log entry later when
the actual number of days is known or the case reaches the 180-day cap
allowed in § 1904.7(b)(3)(v).

Comments on the Recording of Days Away From Work

OSHA received a large number of comments on how days away should be
counted. The issues addressed by commenters included (1) whether to
count scheduled workdays or calendar days, (2) whether the day counts
should be "capped," and, if so, at what level, (3) how to count days
away or restricted when employees are terminated or become permanently
disabled, and (4) how to handle cases that continue to have days away/
restricted from one year to the next.

Scheduled or calendar work days. OSHA proposed to count scheduled
workdays, consistent with its long-standing policy of excluding normal
days off such as weekends, holidays, days the facility is closed, and
prescheduled vacation days (61 FR 4033). The proposal asked the public
for input on which counting method -- calendar days or scheduled work
days -- would be better, stating that "OSHA is considering a
modification to the concept of days away from work to include days the
employee would normally not have worked (e.g. weekends, holidays,
etc.). OSHA believes this change to calendar days would greatly
simplify the method of counting days away by eliminating the need to
keep track of, and subtract out, scheduled days off from the total time
between the employee's first day away and the time the employee was
able to return to full duty" (61 FR 4033). The proposal also discussed
the potential benefits and pitfalls of counting calendar days:

Another potential benefit of changing to calendar days would be
that the day count would more accurately reflect the severity of the
injury or illness. The day count would capture all the days the
employee would not have been able to work at full capacity
regardless of work schedules. For example, if an employee, who
normally does not work weekends, is injured on a Friday and is
unable to work until the following Tuesday, the "days away from
work" would be three (3), using calendar days, rather than one (1)
day, using work days. If the same injury occurred on a Monday, the
day count would be three (3) using either calendar or workdays.
Changing the day count to calendar days would eliminate
discrepancies based upon work schedules. Thus, the day counts would
be easier to calculate and potentially more meaningful.

One of the potential problems with this change would be that
economic information on lost work time as a measure of the impact of
job related injuries and illnesses on work life would no longer be
available. Employers could, however, estimate work time lost by
applying a work day/calendar day factor to the recorded day counts.
OSHA solicits comment on the idea of counting calendar days rather
than work days, in particular, what potential do these methods have
for overstating (i.e. counting calendar days) or understating
(i.e. counting work days) the severity of injuries and illnesses?
(61 FR 4034)

This provision serves no useful purpose. Its proponents
exaggerate the difficulty in computing days away from work under the
current regulation. Instead, it will only serve the purpose of
artificially increasing incidence and severity rates which would
falsely designate a given worksite as unsafe or delineate it as a
high hazard workplace. This false delineation of high hazardousness
would also result in the workplace being unfairly targeted by OSHA
for enforcement activities. In addition, this change would make it
difficult, if not impossible, for employers to compare previous lost
work day incidence rates with current rates. Such trend data is
invaluable to employers in tracking progress made in eliminating
workplace injuries and illnesses.

AWSC would also urge that "days away from work" be counted by
calendar days rather than work days. This would ease the burden on
establishments in their recordkeeping and would also make the data
more useful. For example, an employee injured on Friday who does not
return to work until Tuesday is currently counted as one-day off the
job. If "days away from work" are calculated by calendar days,
then this same injury would be counted as three days. The three day
injury ruling is a more accurate indicator of the seriousness of the
injury.

The United Auto Workers (UAW) argued that: "Calendar days are a
much better measure of severity or disability than actual days which
are adjusted for work schedule, vacations, layoffs and other extraneous
disruptions. Frankly, counting actual days is a waste of effort,
subject to manipulation and serves no public health purpose. It is
relic and should be eliminated. The only reason some employers might
wish to retain this measure is because they can generate a lower
number" (Ex. 15: 438).

DHC questions the concept of counting calendar days versus the
proposed scheduled work days in documenting days away from work.
Both methods have their value and also potential problems. The
calendar method would make it much easier for a company to record
the severity of an accident. However, this method would have a
significant effect on an industry such as retailing, since the
majority of our work force is part-time. If OSHA decides to go with
the calendar method, there needs to be clearly defined examples
referenced in the standard dealing with part-time workers.

Northrop Grumman Corporation (Ex. 15: 42) asserted that:
"[c]ounting calendar days for days away from work would have an
adverse impact on those companies, such as aerospace companies, which
routinely have shut downs for one or more weeks at a time. Employees
injured on the day prior to shut down would have to be recorded as
being injured, off work, for the entire time of the shut down." The
Texas Chemical Council (Ex. 15: 159) expressed concern about the impact
the change to calendar days might have on day counts involving
alternative schedules:

We believe the value of the reduced burden is not worth the
skewed data that may result. OSHA's proposal may yield accurate data
and better reflect severity when applied to work schedules following
an 8 hour day, Monday through Friday. However, many industries
utilize a 12 hour shift that provides periods of time off longer
than the normal two day weekends. The proposed method of counting
days could, for example, turn an injury requiring two days
recuperation time into a case requiring four or more days to be
counted. This would skew severity analysis utilizing days off data.

However, the Eli Lilly Company (Ex. 15: 434) argued that calendar
days would help equalize day counts: "[a] calendar day count would
ensure employer consistency and comparability even when employers have
unique and variable shift works."

Other commenters argued that scheduled workdays are a better
measurement because they measure economic impact and lost productivity
(see, e.g., Exs. 15: 154, 172, 203, 204, 226, 262, 304, 341, 356, 364,
367, 397). The Fertilizer Institute (Ex. 15: 154) argued that:
"Although such a change might simplify the counting of days, it will
make comparisons difficult for companies, trade and professional
associations, and government agencies that are trying to measure the
severity of injuries and illnesses in terms of productivity. In
addition to the health and safety of its employees, industry is
primarily concerned with the cost of work-related injuries and
illnesses, as they relate to lost productivity. Thus, the basis of the
lost work day, not the lost calendar day, is the most appropriate
measurement to use." The Society of the Plastics Industry, Inc. (Ex.
15: 364) urged OSHA to retain the scheduled days system because of its
usefulness in measuring the economic impact of job-related accidents
and the incentive such information provides for prevention efforts.

In addition to arguments about the preferred way of counting days
away, commenters discussed the issues of simplification and the burden
of counting days away from work with both methods. A number of commenters
supported using calendar days because doing so would simplify the process
and reduce burden (see, e.g., Exs. 15: 71, 75, 82, 136, 137, 141, 224,
242, 263, 266, 269, 270, 278, 347, 377, 415, 418, 423, 434). Two
commenters made the point that using calendar days would make it easier
to use computer software to calculate days away from work (Exs. 15:
347, 423). Representative of the comments supporting the use of calendar
days to reduce the recording burden was the view of the Ford Motor
Company (Ex. 15: 347):

The single most significant change that could be made to
simplify and reduce the burden of the current recordkeeping system
would be a change to a calendar count for days away from work. This
would eliminate the need to keep track of and subtract out any
scheduled days off from the time of the employee's first day away
until the time the employee was able to return to work. Of
additional importance, a calendar count approach would provide a
more accurate reflection of the severity of injuries and illnesses.

Currently, tracking days away from work is a particular problem
in that many individuals no longer work a traditional eight hours a
day, Monday through Friday. Some individuals work four days a week,
ten hours a day, others work every Saturday and/or Sunday, and some
individuals have their scheduled days off during the week. Different
employees in the same establishment commonly have different work
schedules. Different departments are commonly on "down time" while
the rest of the establishment may be in full operation. A calendar
count will simplify the calculation of days away from work for
alternative work schedules.

In comparison to the current system, a calendar count will
provide meaningful, consistent, and useful data, as well as provide
an accurate reflection of severity. The calendar day count will also
enhance the ability to develop software to standardize the
recordkeeping process.

In addition, the change to a calendar day count would enable
Ford Motor Company to free up highly trained personnel for more
productive and effective pursuits rather than tracking lost workdays
under the current system. The cost of these resources to track lost
workdays cases exceeds one million dollars per year.

Even some of the commenters who argued against OSHA's adoption of a
calendar day approach in the final rule acknowledged that counting
calendar days would be simpler but emphasized that this added
simplicity and reduction in burden would not offset the deleterious
effect of this change on the data (see, e.g., Exs. 15: 44, 61, 69, 121,
154, 159, 170, 195). The Institute for Interconnecting and Packaging
Electronic Circuits (IPC) said that: "According to IPC member
companies, the potential simplification gains that may be achieved by
this proposal would not outweigh the gross overreporting and,
therefore, inaccurate data that would result" (Ex. 15: 69).

BF Goodrich's business systems are set up to count and track
work days and work hours. We do not agree with the suggestion of
counting calendar days rather than actual work days for Days Away
From Work cases. Counting calendar days would improperly inflate the
severity incidence rates which are calculated based on actual hours
worked and defeat any efforts to perform trend analysis against
previous years. Use of calendar days would also require unnecessary
analysis of work capability for days that would not be worked
anyway. There would be no reduction in burden in a calendar day
system and there would be loss of severity trend analysis
capability.

A number of commenters pointed to the difficulty of analyzing days
away for injuries that occur just before scheduled time off, such as
before the weekend (see, e.g., Exs. 15: 16, 42, 44, 69, 79, 130, 179,
226, 281, 299, 341, 363, 389, 414, 424). The Institute for
Interconnecting and Packaging Electronic Circuits (IPC) described the
following scenario:

[i]f a worker is injured on Friday, is sent home, and returns to
work on Monday, the alternative [calendar day] proposal would
require employers to count weekend days in the lost workday count.
IPC believes that this alternative proposal would not accurately
reflect the severity of the injury since, if the same injury had
occurred on a Monday, the worker might have been able to return to
work on Tuesday. (Ex. 15: 69)

United Parcel Service (UPS) was concerned about the accuracy of
employee reporting of injuries and illnesses under the calendar day
system:

[t]he cessation of the effects of an employee's injury or
illness cannot reliably be determined in the case of a worker who
"heals" on the weekend. Thus, the number of days away from work
and their impact on the perception of serious incidents will be
substantially inflated. Indeed, it has been UPS's experience that a
disproportionate number of injuries are reported on Friday and
Monday; inclusion of claimed weekend injury, therefore, would
greatly inflate OSHA statistics with factors that honest observers
know to be linked, to some degree, with the universal attraction of
an extended weekend. The risk, moreover, is not merely inflated
numbers, but inflation of the apparent severity of those conditions
that are difficult to verify and that are therefore the most likely
resort of employees who would misreport a condition for time off
(Ex. 15: 424).

Another issue noted by commenters was the difficulty of getting
medical attention over the weekend. For example, the American Ambulance
Association (Ex. 15: 226) cautioned that "The common practice of a
health care provider is to defer an employee's return to work until
after a weekend or holiday, due to limited staff resources for
evaluating employee status on those days," and the Sandoz Corporation
(Ex. 15: 299) noted that "This change [to calendar days] would lead to
overstatement of the severity in cases of part-time employees due to
the difficulty of getting return-to-work clearance from medical
personnel."

Two commenters (Exs. 15: 69, 15: 363) objected to counting calendar
days based on a belief that counting these days would raise their
workers' compensation insurance rates. For example, the Institute for
Interconnecting and Packaging Electronic Circuits (IPC) stated that
"Lost time is a major factor in insurance premiums for facilities. As
a result, a definition that would over-estimate lost time would
significantly raise facility insurance costs" (Ex. 15: 69).

Patrick R. Tyson, a partner in the law firm of Constangy, Brooks &
Smith, LLC (Ex. 55X, pp. 99-100), strongly favored moving to a
calendar-day-count system, for the following reason:

[w]hat we've seen in some audits is companies that attempt to
try to control the number of days that would be counted as lost work
days by controlling the number of days that otherwise would be
worked.* * *

We * * * encountered one company that announced proudly in its
newsletter that one particular employee should be congratulated
because when she had to have surgery for carpal tunnel syndrome,
clearly work related * * * she chose to have that surgery during
her vacation so that the company's million man hours of work without
a lost time accident would not be interrupted. That doesn't make any
sense where we encourage those kinds of things * * * We ought to
consider a calendar count if only to address those kinds of
situations. I understand that would cause problems with respect to
those companies who use lost work days as a measure of the economic
impact of injuries and illnesses in the workplace, but I suspect
that a better measure of that would be worker's compensation. If
it's a lost work day, you're going to pay comp on it. * * *

OSHA agrees with some of the points made by those in favor of, and
those opposed to, changing over to calendar day counts. After a
thorough review of the arguments for each alternative, however, OSHA
has decided to require employers to count calendar days, both for the
totals for days away from work and the count of restricted workdays.
OSHA does not agree with those commenters who argued that the counting
of calendar days away from work would be a significant burden. The
Agency finds that counting calendar days is administratively simpler
than counting scheduled days away and thus will provide employers who
keep records some relief from the complexities of counting days away
from work (and days of restricted work) under the old system. For the
relatively simple injury or illness cases (which make up the great
majority of recorded cases) that involve a one-time absence from work
of several days, the calendar-day approach makes it much easier to
compare the injury/illness date with the return-to-work date and
compute the difference. This process is easier than determining each
employee's normal schedule and adjusting for normal days away,
scheduled vacations, and days the facility was not open. The calendar
method also facilitates computerized day counts. OSHA recognizes that,
for those injuries and illnesses that require two or more absences,
with periods of work between, the advantages of the calendar day system
are not as significant; OSHA notes, however, that injuries and
illnesses following this pattern are not common.

Changing to a calendar day counting system will also make it easier
to count days away or restricted for part-time workers, because the
difficulties of counting scheduled time off for part-time workers will
be eliminated. This will, in turn, mean that the data for part-time
workers will be comparable to that for full-time workers, i.e., days
away will be comparable for both kinds of workers, because scheduled
time will not bias the counting method. Calendar day counts will also
be a better measure of severity, because they will be based on the
length of disability instead of being dependent on the individual
employee's work schedule. This policy will thus create more complete
and consistent data and help to realize one of the major goals of this
rulemaking: to improve the quality of the injury and illness data.

OSHA recognizes that moving to calendar day counts will have two
effects on the data. First, it will be difficult to compare injury and
illness data gathered under the former rule with data collected under
the new rule. This is true for day counts as well as the overall number
and rate of occupational injuries and illnesses. Second, it will be
more difficult for employers to estimate the economic impacts of lost
time. Calendar day counts will have to be adjusted to accommodate for
days away from work that the employee would not have worked even if he
or she was not injured or ill. This does not mean that calendar day
counts are not appropriate in these situations, but it does mean that
their use is more complicated in such cases. Those employers who wish
to continue to collect additional data, including scheduled workdays
lost, may continue to do so. However, employers must count and record
calendar days for the OSHA injury and illness Log.

Thus, on balance, OSHA believes that any problems introduced by
moving to a calendar-day system will be more than offset by the
improvements in the data from one case to the next and from one
employer to another, and by the resulting improvements in year-to-year
analysis made possible by this change in the future, i.e., by the
improved consistency and quality of the data.

The more difficult problem raised by the shift to calendar days
occurs in the case of the injury or illness that results on the day
just before a weekend or some other prescheduled time off. Where the
worker continues to be off work for the entire time because of the
injury or illness, these days are clearly appropriately included in the
day count. As previously discussed, if a physician or other licensed
health care professional issues a medical release at some point when
the employee is off work, the employer may stop counting days at that
point in the prescheduled absence. Similarly, if the HCP tells the
injured or ill worker not to work over the scheduled time off, the
injury was severe enough to require days away and these must all be
counted. In the event that the worker was injured or became ill on the
last day before the weekend or other scheduled time off and returns on
the scheduled return date, the employer must make a reasonable effort
to determine whether or not the employee would have been able to work
on any or all of those days, and must count the days and enter them on
the Log based on that determination. In this situation, the employer
need not count days on which the employee would have been able to work,
but did not, because the facility was closed, or the employee was not
scheduled to work, or for other reasons unrelated to the injury or
illness.

Accordingly, the final rule adopts the counting of calendar days
because this approach provides a more accurate and consistent measure
of disability duration resulting from occupational injury and illness
and thus will generate more reliable data. This method will also be
easier and less burdensome for employers who keep OSHA records and make
it easier to use computer programs to keep track of the data.

Capping the Count of Lost Workdays

OSHA proposed to limit, or cap, the total number of days away from
work the employer would be required to record. This would have been a
departure from OSHA's former guidance for counting both days away from
work and restricted workdays. The former rule required the employer to
maintain a count of lost workdays until the worker returned to work,
was permanently reassigned to new duties, had permanent work
restrictions, or was terminated (or retired) for reasons unrelated to
the workplace injury or illness (Ex. 2, pp. 47-50).

OSHA's proposed regulatory text stated that "[f]or extended cases
that result in 180 or more days away from work, an entry of "180" or
"180+" in the days away from work column shall be considered an
accurate count" (61 FR 4058). In the preamble to the proposal, OSHA
explained that day counts of more than 180 days would add negligible
information for the purpose of injury and illness case analysis but
would involve burden when updating the OSHA records. The proposed
preamble also asked several questions: "Should the days away from work
be capped? Is 180 days too short or long of a period? If so, should the
count be capped at 60 days? 90 days? 365 days? or some other time
period?" (61 FR 4033)

Commenters also pointed out that limiting the day counts would make
it easier to count days for cases that span two calendar years (see,
e.g., Exs. 15: 153, 194, 195, 289). Other commenters stated that it was
difficult to modify the former year's records (Ex. 15: 153) and that
the day count cap would ease the burden of tracking cases that span two
calendar years (Ex. 15: 289).

Several commenters stated that the benefits of recording extended
day counts were insignificant (see, e.g., Exs. 15: 111, 159, 176, 184,
260, 262, 265, 288, 297, 373, 401, 430, 434, 442), that they added
negligible information for case analysis or safety and health program
evaluation (Ex. 15: 434), and that there was no "value added
information" from high day counts (see, e.g., Exs. 15: 260, 262, 265,
401, 442). Others stated that capping the day counts would provide
"adequate data" (see, e.g., Exs. 15: 111, 159, 304, 345) and that
there would be no loss of significant data for analysis (see, e.g.,
Exs. 15: 170, 184, 297, 341, 373). The McDonnell Douglas Corporation
(Ex. 15: 297) argued that a cap "[w]ould allow industry to avoid the
significant and costly paperwork burdens associated with tracking lost
workdays, without any appreciable reduction in OSHA's ability to
identify significant workplace injuries and illnesses or to assure
continuing improvement in workplace safety and health."

Support for capping the count of days away from work was not
unanimous, and several commenters opposed a day count cap (see, e.g.,
Exs. 15: 31, 62, 197, 204, 225, 277, 294, 302, 350, 359, 369, 379). The
National Safety Council stated that "[n]o cap on counting lost
workdays is necessary provided that the count automatically ends with
termination, retirement, or entry into long-term disability. Only a
small proportion of cases have extended lost workday counts so there is
little additional recordkeeping burden. The additional information
gained about long-term lost workday cases is important and keeps
employers aware of such cases" (Ex. 15: 359). Other commenters
stressed that it was important to obtain an accurate accounting of days
away to assess the severity of the case (see, e.g., Exs. 15: 294, 379,
429, 440), that the counts were needed to make these cases visible
(see, e.g., Exs. 15: 294, 440), and that the counts demonstrate the
impact of long term absences (Ex. 15: 62). For example, the Boeing
Company (Ex. 15: 294) argued that

If the count is suspended after 180 days (or any other arbitrary
number), an employer will lose valuable information regarding the
true amount of lost work days and their associated costs. The
experience of The Boeing Company indicates that there are a small
number of cases that have many more than 180 days. The result is a
disproportionate amount of total costs. Not having visibility of
these cases would be a mistake.

The United Steelworkers of America (USWA) offered several reasons
for not adopting a day count cap: "The USWA also strongly opposes
capping lost work day cases at 180. We believe that no cap is necessary
or desirable. Only a very small proportion of cases have extended lost
workdays recorded so there is little additional recordkeeping burden.
The additional information gained about long-term lost workday cases is
important in evaluating the severity of the injury and it keeps
attention on such cases" (Ex. 15: 429).

The International Brotherhood of Teamsters (IBT) opposed the
capping of day counts on the basis that the OSH Act requires
"accurate" records, stating that:

The IBT opposes the elimination of counting the days of
restricted work activity and opposes capping the count of "days
away from work" at 180 days. The IBT uses the restricted work
activity day count to gauge the severity of an injury or illness. We
are supported by the OSH Act, section 24(a) "the Secretary shall
compile accurate statistics on work injuries and illnesses which
shall include all disabling, serious, or significant injuries or
illnesses. * * *. The International Brotherhood of Teamsters
maintains that the recording of restricted work activity day counts
and counting of days away from work enables OSHA to compile accurate
data on serious and significant injuries. (Ex. 15: 369)

After a review of the evidence submitted to the record, OSHA has
decided to include in the final rule a provision that allows the
employer to stop counting days away from work or restricted workdays
when the case has reached 180 days. OSHA's primary reason for this
decision is that very few cases involve more than 180 days away or days
of restricted work, and that a cap of 180 days clearly indicates that
such a case is very severe. Continuing to count days past the 180-day
cap thus adds little additional information beyond that already
indicated by the 180-day cap.

Selection of the Day Count Cap

A large number of commenters specifically supported the 180 day cap
proposed by OSHA (see, e.g., Exs. 51; 15: 26, 27, 67, 70, 89, 111, 121,
127, 136, 137, 141, 153, 154, 159, 170, 176, 184, 224, 233, 242, 260,
262, 263, 265, 266, 269, 270, 278, 283, 288, 298, 316, 335, 341, 368,
377, 385, 401, 404, 423, 430, 437, 442). The Chemical Manufacturers
Association (CMA) stated that "CMA supports the use of a cap on the
number of days away from work that must be counted. Once an employee
misses more than 180 days from work * * * due a workplace injury or
illness, the relative seriousness of the incident is determined and
little benefit is derived from continuing to count the number of days
for OSHA's recordkeeping system." The Fertilizer Institute (Ex. 15:
154) supported 180 days because it "is consistent with most corporate
long-term disability plans."

Many commenters who supported a cap on counting days away
recommended that OSHA adopt a number of days other than 180 (see, e.g.,
Exs. 21; 37; 15: 60, 71, 75, 82, 85, 105, 108, 119, 122, 132, 180, 182,
185, 188, 194, 195, 198, 199, 203, 213, 239, 246, 271, 272, 287, 289,
297, 303, 304, 305, 307, 308, 317, 336, 347, 348, 351, 375, 378, 384,
385, 404, 405, 407, 409, 410, 414, 425, 431, 434). The most common
argument against capping at 180 days was that a few very serious cases
would skew the statistical data (see, e.g., Exs. 15: 75, 180, 246, 271,
385, 409). Hoffman-La Roche, Inc. argued for 90 days on the grounds
that "90 days is more than sufficient to get a read on the severity of
the injury/illness. This would enable employers to obtain meaningful
data that is not skewed by one or two cases" (Ex. 15: 271).

NIOSH agrees with OSHA that "day counts greater than 180 days
add negligible information while entailing significant burden on
employers when updating OSHA records." Therefore, NIOSH agrees with
the concept of capping the count of days away from work at a maximum
of 180 days, and recommends that OSHA also consider caps of 60 or 90
days away from work.

Currently, the Annual Survey of Occupational Injuries and
Illnesses reports distributional data for the number of days away
from work and the median number of days away from work for
demographic (age, sex, race, industry, and occupation) and injury/
illness (nature, part of body, source, and event) characteristics.
The largest category of days away from work reported by the BLS for
days away from work is "31 days or more." In 1992, the Annual
Survey reported median days away from work that ranged from 1 day to
236 days [U.S. Department of Labor 1995]. For most demographic and
injury/illness categories, capping the count of days away from work
at 180 days will not alter the values for either the percent of
injuries in the "31 days or more" category or median days away
from work.

OSHA may wish to consider capping the count of days away from
work at either the 60 or the 90 day level. Employers could be
instructed to enter a value of 61+(or 91+) to indicate that the
recorded injury or illness condition existed beyond the cap on the
count of days away from were based on the 1992 Annual Survey data,
no reported industry and only one reported occupation had a median
of greater than 60 days (dental hygienist, median = 71). There was
also a very small number of injury/illness characteristics with
medians between 60 and 90 days or with medians exceeding 90 days.
Eleven of the 13 instances in which the median exceeded 60 days away
from work were based on distributions involving a small number of
estimated cases i.e., only 100 to 400 nationally. Capping the count
of days away from work at either 60 or 90 days would still allow the
reporting of the proportion of cases involving days away from work
in the "31 days or more category" that is currently being reported
by the BLS. A minor limitation of capping the count of days away
from work at 60 or 90 days is that for a very small number of
characteristics, the median would have to be reported as exceeding
the cap.

Two commenters suggested that OSHA use months instead of days as
the measurement (Exs. 15: 304, 404), and a number of commenters pointed
out that OSHA's proposed 180 days should be 125 if based on 6 months of
actual workdays instead of calendar days (see, e.g., Exs. 15: 199, 213,
307, 308, 348).

After careful consideration, OSHA has decided to cap the day counts
at 180 days and to express the count as days rather than months. The
calendar month is simply too large and unwieldy a unit of measurement
for this purpose. The calendar-day method is the simplest method and
will thus produce the most consistent data.

OSHA has decided to cap the counts at 180 days to eliminate any
effect such capping might have on the median days away from work data
reported by BLS. This cap will continue to highlight cases with long
periods of disability, and will also reduce the burden on employers of
counting days in excess of 180. Using a shorter threshold, such as 90
or even 120 days, could impact the injury and illness statistics
published by the BLS, and could thus undermine the primary purpose of
this regulation: to improve the quality and utility of the injury and
illness data. Using a shorter time frame would also make it harder to
readily identify injuries and illnesses involving very long term
absences. The rule also does not require the employer to use the
designation of 180+ or otherwise require cases extending beyond 180
days to be marked with an asterisk or any other symbol, as suggested by
various commenters (see, e.g., Exs. 15: 31, 62, 153, 289, 374, 407,
425). Employers who wish to attach such designations are free to do so,
but OSHA does not believe such designations are needed.

Counting Lost Workdays When Employees Are No Longer Employed by the Company

The proposed rule contained a provision that would have allowed the
employer to stop counting the days away from work when the worker was
terminated for reasons unrelated to an injury or illness (61 FR 4058).
This provision would have continued OSHA's former policy on this
matter, which allowed the employer to stop counting days away or
restricted workdays when the employee's employment was terminated by
retirement, plant closings, or like events unrelated to the employee's
work-related injury or illness (Ex. 2, pp. 49, 50). The final rule, at
paragraph 1904.7(b)(3)(vii), permits employers to stop counting days
away if an injured or ill employee leaves employment with the company
for a reason unrelated to the injury or illness. Examples of such
situations include retirement, closing of the business, or the
employee's decision to move to a new job.

Paragraph 1904.7(b)(3)(vii) also requires employers whose employees
have left the company because of the injury or illness to make an
estimate of the total days that the injured or ill employee would have
taken off work to recuperate. The provisions in paragraph
1904.7(b)(3)(vii) also apply to the counting of restricted or
transferred days, to ensure that days are counted consistently and to
provide the simplest counting method that will collect accurate data.
OSHA's reasoning is that day counts continue to be relevant indicators
of severity in cases where the employee was forced to leave work
because of the injury or illness.

Handling Cases That Cross Over From One Year to the Next

A special recording problem is created by injury and illness cases
that begin in one year but result in days away from work or days of
restricted work in the next year. Under the former rule, the employer
was to record the case once, in the year it occurred, and assign all
days away and restricted days to that case in that year (Ex. 2, p. 48).
Under the rule being published today, this policy still applies. If the
case extends beyond the time when the employer summarizes the records
following the end of the year as required by § 1904.32, the employer
is required by paragraph 1904.7(b)(3)(viii) to update the records when
the final day count is known. In other words, the case is entered only
in the year in which it occurs, but the original Log entry must
subsequently be updated if the day count extends into the following
year.

In addition to the NIOSH (Ex. 15: 407) comments on the day counts
summarized above, the Society for Human Resource Management (Ex. 15:
431) urged OSHA to adopt a lower day count cap to limit the "crossover"
problem. Two commenters urged OSHA to take a new approach to cases that
extend over two or more years. Both the Laborers' Health & Safety Fund
of North America (Ex. 15: 310) and the Service Employees International
Union (Ex. 15: 379) recommended that these cases be recorded in each
year, with the days for each year assigned to the appropriate case. The
Laborers' Health & Safety Fund of North America (Ex. 15: 310) stated:

One concern with a large number of days away from work is how to
record the lost days which begin in one calendar year and end in a
following calendar year. We suggest that it is best to record the
number of days lost from the date of the injury to the end of the
calendar year, and to enter the injury again on the following year's
OSHA 300 with the remaining days of lost time up to the 180 day
maximum. A box should be available to indicate that the entry is a
continuation from the prior year.

As stated earlier, OSHA has decided on the 180 day cap for both
days away and days of restricted work cases to ensure the visibility of
work-related injuries and illnesses with long periods of disability.
The final rule also requires the employer to summarize and post the
records by February 1 of the year following the reference year.
Therefore, there will be some cases that have not been closed when the
records are summarized. Although OSHA expects that the number of cases
extending over two years will be quite small, it does not believe that
these cases warrant special treatment. A policy that would require the
same case to be recorded in two years would result in inaccurate data
for the following year, unless special instructions were provided.
Accordingly, the final rule requires the employer to update the Log
when the final day count is known (or exceeds 180 days), but to record
the injury or illness case only once. This approach is consistent with
OSHA's longstanding practice and is thus familiar to employers.

Miscellaneous Day Counting Issues

Two commenters provided additional comments for OSHA to consider on
the issue of counting days away from work. The Laborers' Health &
Safety Fund of North America (Ex. 15: 310) recommended that OSHA
require employers to enter a count of 365 days away from work on the
Log for any fatality case:

In a recent project we used OSHA 200 data from road construction
and maintenance employers to determine the causes and relative
severities of serious injuries. The number of lost workdays plus
restricted work activity days for an injury event or type was used
as a measure of severity. In quite a few individual injury cases,
the number of days away from work entry was not available because of
the severity of the injury or because the injury resulted in a
fatality. For recordkeeping purposes, we would suggest a maximum cap
of 180 days for a non-fatal serious injury of long duration, and an
automatic entry of 365 for fatalities. Using this method, the most
severe cases would be weighted appropriately, with fatalities
carrying the heaviest weight. Also, entering a lost workday number
for fatalities would enable fatalities to count in a single and
simple "severity-weighted Lost Work Day Injury and Fatality (LWDIF)
rate".

OSHA has not adopted the Laborers' Health & Safety Fund of North
America recommendation. OSHA believes that fatalities must be
considered separately from non-fatal cases, however severe the latter
may be. When an employee dies due to a work-related injury or illness,
the outcome is so severe and so important that it must be treated
separately. Merging the two types of cases would diminish the
importance of fatality entries and make the days away data less useful
for determining the severity of days away injury cases. Accordingly,
the final rule being published today does not reflect this
recommendation.

The Westinghouse Corporation (Ex. 15: 405) suggested that OSHA look
at days of hospitalization as a measure of severity, stating "[t]he
number of days hospitalized does provide a more objective indication of
the seriousness of injury or illness, if for no other reason than cost
control by insurance companies. If OSHA can document a legitimate use
for an indicator of the "seriousness" of an injury, it may want to
consider hospital stay time." OSHA has considered the use of
hospitalized days, but has rejected them as a measure of injury or
illness severity. Although these day counts may be a reasonable proxy
for severity, they are applicable only in a relatively small number of
cases.

Paragraph 1904.7(b)(4) Restricted Work or Transfer to Another Job

Another class of work-related injuries and illnesses that Section
8(c) of the Act identifies as non-minor and thus recordable includes
any case that results in restriction of work or motion(2) or transfer
to another job. Congress clearly identified restricted work activity
and job transfer as indicators of injury and illness severity.

In the years since OSHA has been enforcing the recordkeeping rule,
however, there has been considerable misunderstanding of the meaning of
the term "restricted work," and, as a result, the recording of these
cases has often been inconsistent. The Keystone Report (Ex. 5), which
summarized the recommendations of OSHA stakeholders on ways to improve
the OSHA recordkeeping system, noted that restricted work was perhaps
the least understood of the elements of the system.

This section of the Summary and Explanation first discusses the
former recordkeeping system's interpretation of the term restricted
work, describes how the proposed rule attempted to revise that
interpretation, and then summarizes and responds to the comments OSHA
received on the proposed approach to the recording of work restriction
and job transfer cases. Finally, this section explains the final rule's
restricted work and job transfer requirements and OSHA's reasons for
adopting them.

The Former Rule

The former recordkeeping rule did not include a definition of
restricted work or job transfer; instead, the definition of these terms
evolved on the basis of interpretations in the BLS Guidelines (Ex. 2,
p. 48). The Guidelines stated that restricted work cases were those
cases "where, because of injury or illness, (1) the employee was
assigned to another job on a temporary basis; or (2) the employee
worked at a permanent job less than full time; or (3) the employee
worked at his or her permanently assigned job but could not perform all
the duties connected with it." The key concepts in this interpretation
were that work was to be considered restricted when an employee
experienced a work-related injury or illness and was then unable, as a
result of that injury or illness, to work as many hours as he or she
would have been able to work before the incident, or was unable to
perform all the duties formerly connected with that employee's job.
"All duties" were interpreted by OSHA as including any work activity
the employee would have performed over the course of a year on the job.

OSHA's experience with recordkeeping under the former system
indicated that employers had difficulty with the restricted work
concept. They questioned the need for keeping a tally of restricted
work cases, disagreed with the "less than full time" concept, or
were unsure about the meaning of "all the duties connected with [the
job]." (In OSHA's experience, employers have not generally had
difficulty understanding the concept of temporary job transfer, which
are treated in the same way as restricted work cases for recordkeeping
purposes. The following discussion thus focuses on restricted work
issues.) The changes OSHA proposed to make to the work restriction
concept (61 FR 4033) were intended to address these employer concerns.

The Proposed Rule

The proposal would have changed restricted work recordkeeping
practices markedly. For example, the proposal would have required
employers to acknowledge that the case involved restricted work by
placing a check in the restricted work column on the Log but would no
longer have required them to count the number of restricted work days
associated with a particular case. At the time of the proposal, OSHA
believed that dropping the requirement to count restricted days was
appropriate because the Agency lacked data showing that restricted work
day counts were being used by employers in their safety and health
programs. In addition, the proposal would have limited the work
activities to be considered by the employer in determining whether the
injured or ill worker was on restricted work. Under the former rule,
employers had to consider whether an injured or ill employee was able
to perform "all the duties" normally connected with his or her job
when deciding if the worker's job was restricted; OSHA interpreted
"all the duties" to include any work activity the employee performed
at any time within a year. Under the proposal, the duties that the
employer would have been required to consider were narrowed to include
only (1) those work activities the employee was engaged in at the time
of injury or illness onset, or (2) those activities the employee would
have been expected to perform on that day (61 FR 4059). OSHA also
requested comment in the proposal on the appropriateness of limiting
the activities to be considered and on other definitions of work
activities that should be considered, e.g., would it be appropriate not
to consider an employee to be on restricted work if he or she is able
to perform any of his or her former job activities? (61 FR 4059).

Comments on the Proposed Rule's Restricted Work and Job Transfer
Provisions

The comments OSHA received on these provisions were extensive.
Commenters offered a wide variety of suggestions, including that OSHA
eliminate restricted work activity cases from the recordkeeping system
altogether, that the proposed definition of restricted work activity be
changed, that the proposed approach be rejected, that it be adopted,
and many other recommendations. These comments are grouped under topic
headings and are discussed below.

Eliminate the Recording of Restricted Work Cases

Several commenters recommended that OSHA completely eliminate the
recording of restricted work cases because, in the opinion of these
commenters, the concept confused employers, created disincentives to
providing light duty work or return-to-work programs, and provided no
useful information (see, e.g., Exs. 15: 119, 203, 235, 259, 336, 414,
427). For example, the American Bakers Association said, "We believe
that the concept and definitions of 'restricted work activity' should
be eliminated. That term and its proposed definition is so ambiguous as
to be unworkable, and information gleaned from that terminology would
have little reliability or usefulness" (Ex. 15: 427).

The National Grain and Feed Association agreed, arguing that the
recording of restricted work cases should be eliminated on the
following grounds:

[w]e agree with the conclusion of the Keystone Report that "the
recording of restricted work is perhaps the least understood and
least accepted concept in the recordkeeping system." We disagree
with OSHA, however, that the concept of restricted work is
meaningful. For example, there is a wide range of restrictions that
may be placed on an injured employee's activity after returning to
work depending on the nature of the injury (e.g., the range of work
possible for an employee who has experienced a slight sprain versus
an employee with a broken bone). Additionally, the concept of
restricted work is greatly dependent on individual employee
motivation and job description. * * * Importantly, we believe the
concepts embodied in the proposed restricted work definition run
counter to modern work practices that encourage workers to return to
productive work at the worksite. Workers who have experienced minor
injuries on the job can return to productive work under employer
"return-to-work" programs. For this reason, the concept of
restricted work is arbitrary and ultimately of little use to either
evaluating the effectiveness of an employer's safety and health
programs or determining the exposure of workers to a hazard at a
specific worksite. We, therefore, recommend that the Agency delete
the category of restricted work injuries from the proposed changes
to 29 CFR 1904. Removal of this section will simplify the
recordkeeping system and make it more "user friendly." We support
deletion of this category of injury because we think it will make
the system more complex and is inconsistent with current practices
of returning employees back to productive work at the earliest date
(Ex. 15: 119).

Revise the Proposed Definition of a Restricted Work Case

Most of the remaining comments recommended either that the
definition of restricted work in the final rule be revised to include a
more inclusive set of job activities or functions or a less inclusive
set. For example, the Small Business Administration (Ex. 51) was
concerned that:

[t]he new definition for classifying "restricted work
activity" could increase the number of cases that would be subject
to this standard, and subsequently, classified as a recordable
incident. Small businesses would face increased recordkeeping. Under
the proposed definition, a case would be determined as a
"restricted work activity" if the employee cannot perform what he
or she was doing at the time of the illness or injury, or he or she
could not perform the activities scheduled for that day. While this
would be a very simple method, it would encompass more recordable
incidents. Many workers have a myriad of tasks associated with their
job. If an employee can return to work and perform functions within
their job description, this should not be considered "restricted
work activity". * * *

Several commenters recommended that OSHA rely on a definition of
restricted work that would focus on "non productive work" and exclude
the recording of any case where the employee was still productive (see,
e.g., Exs. 15: 9, 45, 46, 67, 80, 89, 247, 437). For example,
Countrymark Cooperative, Inc. (Ex. 15: 9) stated:

[w]e disagree with a portion of the definition for restricted
work activity. We agree that this should include injuries or
illnesses where the worker is not capable of performing at full
capacity for a full shift. However, by addressing the task that they
were engaged in at the time of the injury will create problems. Most
employees today have numerous assignments and responsibilities. They
move from one task to another during a given day and during a given
week. What they are doing at the time they are injured may not be
the assignment for the next day or the next week. In these cases,
they may be back at work in a fully productive role, but not doing
the same task as when they were hurt. If they are performing a fully
productive role within the same job description, but cannot perform
the role of the job they were doing at the time, they should not be
penalized. In many cases, this job task may not be active at the
time they return. * * * It should be very clear that the ability to
return an employee to a productive role (whether 50% or 100%) is
extremely important to any "Return-to-Work" Program. If that
person is returned to work and is performing at full capacity in a
given task within their job description, this should not be recorded
unless it meets other criteria such as medical treatment. If we
return to the days of recording these and penalizing the employer,
they may be inclined to return to the days of only allowing employees
to return to work when they are 100% in all given tasks within their
job description. If this occurs, we all lose. * * * We do agree that
any time an employee is returned to work and is restricted to only perform
certain jobs, can only return for a limited duration, or must be
reassigned to another task, this should be recorded as a restricted
work case (Ex. 15: 9).

[t]he concept of restricted work activity as described on page
4046 [of the Federal Register] is one with which the Council
concurs, but the specific wording in proposed section 1904.3 is less
clear. The colon following the opening clause of the definition "at
full capacity for a full shift:" seems to mean that the employee
must be able to perform the task during which he/she was injured and
the other tasks he/she performed or would have performed that day
not only for the normal frequency or duration, but "at full
capacity for a full shift." For example, if the employee were
required to open a valve at the start of a shift and close it at the
end of the shift, the current wording seems to say that if the
employee could not spend the entire shift opening and closing the
valve, then his/her work activity is restricted. * * * The Council
also believes that the concept of restricted work activity as
formulated by the Keystone Report is appropriate in that it
represents a consensus among the various stakeholder groups. For
this reason, we also recommend that the task limitations refer to
the week's activities rather than the day's activities (Ex. 15:
359).

The Union of Needletrades, Industrial and Textile Employees (UNITE)
agreed with the National Safety Council that a different time period
should be used in determining what job activities to consider. UNITE
suggested that OSHA use the employee's monthly, rather than daily or
weekly, duties to define restricted work activity (Ex. 15: 380).

A few commenters expressed concern that use of the proposed
restricted work definition could lead employers to include unusual,
extraordinary or rarely performed duties in the "work activities" to
be considered when determining whether a case was a restricted work
case (see, e.g., Exs. 15: 80, 247). For example, the Arizona Public
Service Company said:

[d]etermining restricted duty days should remain as it currently
is in the Guidelines. The restriction should focus on the ability of
the employee to perform all or any part of his or her normal job
duties. Focusing on what specifically they were doing at the time of
injury could incorrectly base this determination on an activity that
is performed rarely. Also, focusing on what they were scheduled to
do for that week would not be useful for those whose schedules can
change daily (Ex. 15: 247).

Adopt the Americans With Disabilities Act Definition of Essential
Duties

The Laboratory Corporation of America's comment (Ex. 15: 127) was
typical of those of several commenters who suggested that OSHA use the
concept of essential job duties that is also used for the
administration of the Americans with Disabilities Act (ADA) (see, e.g.,
Exs. 15: 127, 136, 137, 141, 224, 266, 278, 431):

[t]he definition used by the Americans with Disability Act (ADA)
would be very useful here. That definition indicates that restricted
work exists if an employee is unable to perform the essential
functions of his/her job. Since these essential functions are
identified in the employee's job description, the employer would
have a consistent "yardstick" with which to make this
determination for each employee.

Adoption of the Proposed Approach Will Lead to Underreporting

Some commenters, such as the AFL-CIO, opposed the proposed approach
to restricted work on the grounds that it would result in underreporting:

[w]e believe this proposed provision would entice employers to
manipulate records and lead to further under-reporting. We strongly
suggest that the Agency adopt the Keystone Report recommendation of
restricted work which requires an employer to record if the employee
is (1) unable to perform the task he or she was engaged in at the
time of injury or onset of illness (task includes all facets of the
assignment the employee was to perform); or (2) unable to perform
any activity that he or she would have performed during the week
(Ex. 15: 418).

Other commenters agreed (see, e.g., Exs. 20, 15: 17, 129, 418). For
example, the United Brotherhood of Carpenters (UBC) Health & Safety
Fund of North America argued in favor of a broader definition to avoid
this problem:

[t]he majority of workers represented by the UBC, such as
carpenters and millwrights, routinely perform a wide variety of
tasks during their normal workdays in either construction or
industrial settings. Therefore, OSHA should not limit the
classification of "restricted work activity" to either "the task
he or she was engaged in at the time of the injury" or his or her
daily work activity (daily work activity includes all assignments
the employee was expected to perform on the day of the injury or
onset of illness)" as proposed. The UBC feels that the current
proposal would allow for manipulation of the records and will lead
to serious under reporting. Many workplaces have armies of "walking
wounded" rather than reporting lost or restricted work activity.
OSHA should at the very least adopt the position of the Keystone
Report which recommended that restricted work activity should be
recorded if the employee is "(1) unable to perform the task he or
she was engaged in at the time of the injury or onset of illness, or
(2) unable to perform any activity that he or she would have
performed during the week." The UBC believes that the best
definition of restricted work activity would be any illness or
injury which inhibits, interferes with, or prevents a worker from
performing any or all of the functions considered to be a normal
part of his or her trade or occupation as defined in the applicable
job description (Ex. 20).

Do Not Count Incidents Involving Only One or a Few Days as Restricted
Work

A number of commenters recommended that restricted work activity
involving only the day of injury/illness onset should not trigger an
OSHA recordable case (see, e.g., Exs. 15: 19, 44, 146, 154, 156, 198,
364, 374, 391). Typical of these comments is one from the Society of
the Plastics Industry, Inc.:

[e]mployers have had problems with OSHA's definition of
restricted work activity because OSHA's interpretation that having
any work restriction, even one which lasts only for the remainder of
the shift and which imposes no significant limitations on the
employee's ability to perform his or her job, makes a case
recordable. OSHA should adopt the administratively simple and
common-sense rule that restricted work activity on the day of the
case report does not make the case recordable. . . . The definition
of "restricted work activity" should be clarified to state that
the criteria apply only to days following the day of injury or onset
of the illness. An employee's inability to work a full shift on the
actual date of injury or onset of illness should not require
recording as a restricted work case. As noted above, because OSHA's
interpretation that having any work restriction, even one which
lasts only for the remainder of the shift and which imposes no
significant limitations on the employee's ability to perform his or
her job, makes a case recordable, many non-serious, non-disabling
cases are now recorded. Cases which do not otherwise meet the
recordability criteria should not be recordable. Therefore, as
recommended above, OSHA should eliminate the current requirement to
record cases in which restricted work activity occurs only on the
day of the case report (Ex. 15: 364).

The Kodak Company urged OSHA not to count cases involving
restrictions lasting only for three days as restricted work cases on
the grounds that such cases are "minor": "Restricted work activity
allows employers and employees to remain at work. This is a win-win
situation for both. Kodak suggests restricted work activity be counted
only if the restriction lasts longer than 3 working days. Hence, only
serious cases would be recorded" (Ex. 15: 322).

[p]roviding a clear definition of what constitutes restricted
work and an item to indicate that an injured employee has been
shifted to restricted work activity should improve the accuracy and
completeness of case reporting. Identifying the actual number of
cases in which employees are shifted to alternate work, which are
thought to be under reported, and adding the date when the employee
returned to his/her usual work will help to assess the impact of
these incidents.

The American Petroleum Institute, which believed that the proposed
definition would be easy to interpret and would therefore improve
recording consistency, stated: "API strongly supports OSHA's proposed
definition of restricted activity. Because it is much more logical and
easy to understand than the current definition, API believes it will
lead to greater consistency" (Ex. 15: 375).

Use Different Triggers Than Those Proposed

The Commonwealth Edison Company recommended that restricted work be
defined only in terms of the hours the employee is able to work, not
the functions the employee is able to perform:

[C]omEd disagrees with OSHA on its definition of "restricted
work activity". We propose that OSHA consider that restricted work
activity simply state "Restricted work activity means the worker,
due to his or her injury or illness, is unable to work a full
shift." OSHA's proposed definition of restricted work activity is
even more confusing than the current one. ComEd's proposed
definition will allow quantifiable, direct cost tracking for this
category of injury or illness. Workers will more than likely have
some kind of meaningful work waiting for them if the injury is not
disabling. If he or she is able to work the required normal shift
hours, don't count the case as restricted. If they miss the entire
shift, count is as a day away from work. If they miss part of the
shift, count it as restricted (Ex. 15: 277).

Two commenters suggested that a case should only be considered
restricted when it involves both medical treatment and work
restrictions (Exs. 15: 9, 348). For example, the E. I. du Pont de
Nemours & Company (DuPont) said that the

"Restricted Work Activity" definition is a definite
improvement over the current one. Suggest making treatment AND
restriction the criteria. An insignificant injury can result in
being told not to climb ladders. This does not negate the ability to
do the job; it just limits the job to levels where ladder climbing
is not required. * * * Restricted work activity is more dependent on
timing and job than on injury severity. It doesn't necessarily focus
on hazardous conditions. Certainly the definition in the proposed
guidelines is far more specific and appropriate than the current
one. We suggest consideration be given to dropping the Restricted
category where medical treatment is not also given. For example, a
slight muscle strain will result in advice not to climb ladders. The
case would be in the restricted category although the treatment, if
any, would be at the first aid level. Injury severity is the
equivalent of a cut finger" (Ex. 15: 348).

[t]he definition of "restricted work activity" also concerns
me and I believe it is unsuitable. The definition refers to an
employee who is not capable of performing at full capacity for a
full shift the "task" that he or she was engaged in at the time of
the injury or onset of illness. The definition should include "any
and all tasks" within the employee's clearly defined job
description" (Ex. 15: 62).

The Maine Department of Labor, however, preferred the former rule's
interpretation, with some modifications:

[w]e agree that there should be no mention of "normal" duties
in the definition. Include: temporary transfer to a position or
department other than the position or department the worker was
working at when he/she was injured. Some of these can be detected on
payroll records; only being able to work part of their workday. Time
forms could raise suspicion here; a health care provider puts the
person on written restrictions unless the employer can show that the
restrictions listed do not impact the employee's ability to do his
or her scheduled job during the time period of the restrictions.
Keep a copy of the restrictions in the file. The doctor's name on
the OSHA 301 serves as another possible check (Ex. 15:41).

Miscellaneous Comments and Questions

There were also a variety of miscellaneous comments and questions
about the proposed approach to the recording of restricted work cases.
For example, Bob Evans Farms suggested that:

[w]hen considering this proposal, OSHA needs to keep in mind the
special nature of the restaurant business. It is not uncommon for a
cook to cut himself or herself, apply a Band-Aid, and then
temporarily be reassigned to janitorial work for a day or two to
keep the cut dry while it heals. This could be considered work duty
modification and would then need to be reported to OSHA. As you can
see, this type of minor occurrence would clog the system with
needless paper (Exs. 15: 3, 4, 5, 6).

Phibro-Tech, Inc. offered this comment:

[a] factory employee who normally performs heavy labor may be
assigned office work as a restricted work activity, and may not
actually be contributing anything meaningful to the job. Will
employers be required to limit what is considered "light duty"
tasks? Will there be directives as to when an employee should really
be off work or when he can be on "light duty"? Occupational
physicians all have different opinions as to when an employee can
return for light or full duty. It would be helpful to have more
direction on this issue so employees aren't sent back to work too
soon or kept off on lost time too long (Ex. 15: 35).

The law firm of Constangy, Brooks & Smith, LLC, asked, "[w]ould a
restriction of piece rate or production rate be considered restricted
duty under the proposed definition even though it is not considered
restricted duty under the present guidelines?" (Ex. 15: 428). Miller
Brewing Company added, "[w]ould also recommend that OSHA attempt to
clarify whether a treating physician's [non-specific] return to work
instructions such as "8 hours only," "self restrict as needed," and
"work at your own pace" will constitute restricted work activity
under the proposed recordkeeping rule" (Ex. 15: 442).

The Pacific Maritime Association stated:

This is another example where the ILWU/PMA workforce does not
fit into the proposed recordkeeping system. The regulation as
written pertains to employers who assign their employees to work
tasks. As previously mentioned, in our industry it is the employee
who selects the job they will perform. This dispatch system, or job
selection process, presents many problems when the maritime industry
is required to conform to requirements established for traditional
employee/employer relationships found in general industry. At the
present time there is no method available to determine why an
individual longshoreman selects a specific job. Therefore, the
requirement to identify, track, and record "restricted work
activity" may be impossible to accomplish [in the maritime
industry] (Ex. 15: 95).

Preventive Job Transfers

Several commenters (see, e.g., Exs. 25; 15: 69, 156, 406) urged
OSHA to make some accommodation for "preventive transfers" and medical
removals. Many transfers and removals of this nature are related to
work-related musculoskeletal disorders and are used to prevent minor
musculoskeletal soreness from becoming worse. The following comments
are representative of the views of these commenters. The Ogletree,
Deakins, Nash, Smoak & Stewart (ODNSS) coalition commented:

[t]his definition [the proposed definition of restricted work]
is overly broad, penalizes employers who have a light duty program
in place, and fails to take into account that (1) today's employees
increasingly are cross trained and perform varied tasks, and (2) the
ability of an employee to perform alternative meaningful work
mitigates the seriousness of the inability to perform work in the
two categories set out in the definition as proposed. The ODNSS
Coalition recommends curing these defects by adding the following
proviso to the proposed definition: "The case should be recorded as
a restricted work case UNLESS the restrictive work activity is
undertaken to relieve minor soreness experienced by a newly hired or
transferred employee during a break-in phase to prevent the soreness
from worsening, or the employee otherwise is able to perform other
existing full-time duties." The appropriate nature of the
recommended proviso is underscored by a baseball analogy where the
right fielder and the center fielder change positions. They both
continue to play on the same team and make substantial
contributions, but the strain on the new right fielder is less
because he doesn't have as much ground to cover (Ex. 15: 406).

The National Association of Manufacturers (NAM) summed up its views
as follows:

[a] preventive or prophylactic measure such as medical removal
(as opposed to a restorative or curative measure) is not and should
not be deemed medical treatment, a job transfer or restricted
activity for purposes of recordability, in the absence of a
substantial impairment of a bodily function (Ex. 25).

Although Organization Resource Counselors (ORC) generally endorsed
the proposed approach to the treatment of restricted work cases, it did
express concern about how medical removal cases would be treated under
the proposed definition:

[t]he proposed definition of restricted work is a significant
improvement over the current [former] one, which was considered by
many employers to be unfair and confusing. It is no secret that many
employers did not understand the current restricted work rules and,
as a result, did not follow them consistently. Additionally, the
[proposed] elimination of the count of restricted workdays is
appropriate and is a recognition by OSHA that the recording of this
count is of little value to either the Agency or employers in
program evaluation or program development. * * * Additionally,
requirements for the recording of either voluntary or mandatory
medical removals where no additional symptoms are present are
examples of appropriate action taken by employers to prevent harm to
employees and not of a recordable injury or illness. * * *" (Ex.
15: 358).

Final Rule's Restricted Work and Job Transfer Provisions, and OSHA's
Reasons for Adopting Them

Paragraph 1904.7(b)(4) contains the restricted work and job
transfer provisions of the final rule. These provisions clarify the
definition of restricted work in light of the comments received and
continue, with a few exceptions, most of the former rule's requirements
with regard to these kinds of cases. OSHA finds, based on a review of
the record, that these provisions of the final rule will increase
awareness among employers of the importance of recording restricted
work activity and job transfer cases and make the recordkeeping system
more accurate and the process more efficient.

OSHA believes that it is even more important today than formerly
that the definition of restricted work included in the final rule be
clear and widely understood, because employers have recently been
relying on restricted work (or "light duty") with increasing
frequency, largely in an effort to encourage injured or ill employees
to return to work as soon as possible. According to BLS data, this
category of cases has grown by nearly 70% in the last six years. In
1992, for example, 9% of all injuries and illnesses (or a total of
622,300 cases) recorded as lost workday cases were classified in this
way solely because of restricted work days, while in 1998, nearly 18%
of all injury and illness cases (or a total of 1,050,200 cases) were
recorded as lost workday cases only because they involved restricted
work [BLS Press Release 99-358, 12-16-99). The return-to-work programs
increasingly being relied on by employers (often at the recommendation
of their workers' compensation insurers) are designed to prevent
exacerbation of, or to allow recuperation from, the injury or illness,
rehabilitate employees more effectively, reintegrate injured or ill
workers into the workplace more rapidly, limit workers' compensation
costs, and retain productive workers. In addition, many employees are
eager to accept restricted work when it is available and prefer
returning to work to recuperating at home.

The final rule's requirements in paragraph 1904.10(b)(4) of the
final rule state:

(4) How do I record a work-related injury or illness that
involves restricted work or job transfer?

When an injury or illness involves restricted work or job
transfer but does not involve death or days away from work, you must
record the injury or illness on the OSHA 300 Log by placing a check
mark in the space for job transfer or restricted work and entering
the number of restricted or transferred days in the restricted work
column.

(i) How do I decide if the injury or illness resulted in
restricted work?

Restricted work occurs when, as the result of a work-related
injury or illness:

(A) You keep the employee from performing one or more of the
routine functions of his or her job, or from working the full
workday that he or she would otherwise have been scheduled to work;
or

(B) A physician or other licensed health care professional
recommends that the employee not perform one or more of the routine
functions of his or her job, or not work the full workday that he or
she would otherwise have been scheduled to work.

(ii) What is meant by "routine functions"?

For recordkeeping purposes, an employee's routine functions are
those work activities the employee regularly performs at least once
per week.

(iii) Do I have to record restricted work or job transfer if it
applies only to the day on which the injury occurred or the illness
began?

No. You do not have to record restricted work or job transfers
if you, or the physician or other licensed health care professional,
impose the restriction or transfer only for the day on which the
injury occurred or the illness began.

(iv) If you or a physician or other licensed health care
professional recommends a work restriction, is the injury or illness
automatically recordable as a "restricted work" case?

No. A recommended work restriction is recordable only if it
affects one or more of the employee's routine job functions. To
determine whether this is the case, you must evaluate the
restriction in light of the routine functions of the injured or ill
employee's job. If the restriction from you or the physician or
other licensed health care professional keeps the employee from
performing one or more of his or her routine job functions, or from
working the full workday the injured or ill employee would otherwise
have worked, the employee's work has been restricted and you must
record the case.

(v) How do I record a case where the worker works only for a
partial work shift because of a work-related injury or illness?

A partial day of work is recorded as a day of job transfer or
restriction for recordkeeping purposes, except for the day on which
the injury occurred or the illness began.

(vi) If the injured or ill worker produces fewer goods or
services than he or she would have produced prior to the injury or
illness but otherwise performs all of the activities of his or her
work, is the case considered a restricted work case?

No. The case is considered restricted work only if the worker
does not perform all of the routine functions of his or her job or
does not work the full shift that he or she would otherwise have worked.

(vii) How do I handle vague restrictions from a physician or
other licensed health care professional, such as that the employee
engage only in "light duty" or "take it easy for a week"?

If you are not clear about a physician or other licensed health
care professional's recommendation, you may ask that person whether
the employee can perform all of his or her routine job functions and
work all of his or her normally assigned work shift. If the answer
to both of these questions is "Yes," then the case does not
involve a work restriction and does not have to be recorded as such.
If the answer to one or both of these questions is "No," the case
involves restricted work and must be recorded as a restricted work
case. If you are unable to obtain this additional information from
the physician or other licensed health care professional who
recommended the restriction, record the injury or illness as a case
involving job transfer or restricted work.

(viii) What do I do if a physician or other licensed health care
professional recommends a job restriction meeting OSHA's definition
but the employee does all of his or her routine job functions
anyway?

You must record the injury or illness on the OSHA 300 Log as a
restricted work case. If a physician or other licensed health care
professional recommends a job restriction, you should ensure that
the employee complies with that restriction. If you receive
recommendations from two or more physicians or other licensed health
care providers, you may make a decision as to which recommendation
is the most authoritative, and record the case based upon that
recommendation.

The concept of restricted work activity in the final rule falls
somewhere between the commenters' broadest and narrowest definitions of
the work activities that should be considered in determining whether a
particular case involves work restriction. The final rule's concept of
restricted work is based both on the type of work activities the
injured or ill worker is able to perform and the length of time the
employee is able to perform these activities. The term "routine
functions of the job" in paragraphs 1904.7(b)(4)(i) and (b)(4)(ii)
clarifies that OSHA considers an employee who is unable, because of a
work-related injury or illness, to perform the job activities he or she
usually performs to be restricted in the work he or she may perform.
Use of the term "routine functions of the job" should eliminate the
concern of some commenters who read the proposed definition as meaning
that an employee had to be able to perform every possible work
activity, including those that are highly unusual or performed only
very rarely, in order for the employer to avoid recording the case as a
restricted work case (see, e.g., Exs. 15: 80, 247). In other words,
OSHA agrees that it makes little sense to consider an employee who is
prevented by an injury or illness from performing a particular job
function he or she never or rarely performed to be restricted (see,
e.g., Exs. 15: 80, 247). For example, OSHA finds that, for the purposes
of recordkeeping, an activity that is performed only once per month is
not performed "regularly." This approach is consistent with OSHA
interpretations under the former rule. Limiting the definition to
"essential functions," the ADA term recommended by several commenters
(see, e.g., Exs. 15: 127, 136, 137, 141, 224, 266, 278, 431), would be
inappropriate, because OSHA needs information on all restricted work
cases, not just those that interfere with the essential functions of
the job (29 U.S.C. 657(c)(2)).

On the other hand, OSHA agrees with those commenters who argued
that the proposed definition, to limit the definition of restricted
activity to the specific functions or tasks the employee was engaged in
on the day of injury or onset of illness would be unsatisfactory,
because doing so could fail to capture activities that an employee
regularly performs (see, e.g., Exs. 20; 15: 17, 129, 380, 418). In the
final rule, OSHA has decided that defining restricted work as work that
an employee would regularly have performed at least once per week is
appropriate, i.e., OSHA believes that the range of activities captured
by this interval of time will generally reflect the range of an
employee's usual work activities. Activities performed less frequently
than once per week reflect more uncommon work activities that are not
considered routine duties for the purposes of this rule. However, the
final rule does not rely on the duties the employee actually performed
during the week when he or she was injured or became ill. Thus, even if
an employee did not perform the activity within the last week, but
usually performs the activity once a week, the activity will be
included. OSHA believes that this change in definition will foster
greater acceptance of the concept of restricted work among employers
and employees because of its common sense approach.

Use of the term "partial work shift" in paragraph 1904.7(b)(4)(v)
covers restrictions on the amount of time an employee is permitted to
work because of the injury or illness. This interpretation of
restricted work was not generally disputed by commenters, although some
argued that the restriction on the hours worked should last for a
specific number of days before the case becomes recordable as a
restricted work case (see, e.g., Exs. 15: 19, 44, 146, 154, 156, 198,
364, 374, 391).

The final rule's restricted work provisions also clarify that work
restriction must be imposed by the employer or be recommended by a
health care professional before the case is recordable. Only the
employer has the ultimate authority to restrict an employee's work, so
the definition is clear that, although a health care professional may
recommend the restriction, the employer makes the final determination
of whether or not the health care professional's recommended
restriction involves the employee's routine functions. Restricted work
assignments may involve several steps: an HCP's recommendation, or
employer's determination to restrict the employee's work, the employers
analysis of jobs to determine whether a suitable job is available, and
assignment of the employee to that job. All such restricted work cases
are recordable, even if the health care professional allows some
discretion in defining the type or duration of the restriction, an
occurrence noted by one commenter (Ex. 15:442). However, the final
rule's provisions make it clear that the employee is not the person
making the determination about being placed on restricted work, as one
commenter (Ex. 15: 97) feared.

A number of commenters suggested that OSHA cease to require the
recording of restricted work cases entirely (see, e.g., Exs. 15: 119,
427). However, the Congress has directed that the recordkeeping system
capture data on non-minor work-related injuries and illnesses and
specifically on restricted work cases, both so that the national
statistics on such injuries and illnesses will be complete and so that
links between the causes and contributing factors to such injuries and
illnesses will be identified (29 U.S.C. 651(b)). Days away and
restricted work/job transfer cases together constitute two of the most
important kinds of job-related injuries and illnesses, and it would be
inappropriate not to record these serious cases. OSHA also cannot
narrow the definition of restricted work to those cases where the
employee is at work but cannot do productive work, as several
commenters suggested (see, e.g., Exs. 15: 9, 45, 46, 89, 437), because
the Congress clearly intended that workers whose work-related injuries
and illnesses were so severe as to prevent them from doing their former
work or from working for a full shift had experienced an injury or
illness that was non-minor and thus worthy of being recorded. OSHA does
not believe that requiring employers to record such injuries and
illnesses as restricted work cases will in any way discourage the use of restricted
work or return-to-work programs, and the marked shift in the number of
restricted work cases reported to the BLS in the last few years bears
this out. It would also not be appropriate for OSHA to require that
employers only record as restricted work cases those cases in which the
injured or ill worker requires medical treatment and is placed on
restricted work, as some commenters suggested (see, e.g., Exs. 15: 9,
348). The OSH Act clearly requires the recording of all work-related
cases that require either medical treatment or restricted work.

Under the final rule, employers are not required to record a case
as a restricted work case if the restriction is imposed on the employee
only for the day of the injury or onset of illness. OSHA thus agrees
with a number of commenters (see, e.g., Exs. 15: 19, 44, 146, 154, 156,
198, 364, 374, 391) that restricted activity only on the day the injury
occurred or the illness began does not justify recording. This
represents a change in the treatment of restricted work cases from
OSHA's practice under the former rule. OSHA has made this change to
bring the recording of restricted work cases into line with that for
days away cases: under the final rule, employers are not required to
record as days away or restricted work cases those injuries and
illnesses that result in time away or time on restriction or job
transfer lasting only for the day of injury of illness onset.

Several commenters recommended that cases involving medical removal
under the lead or cadmium standards or cases involving "voluntary"
preventive actions, such as cases involving job transfer or restricted
work activity, not be considered recordable under the final rule; these
participants argued that requiring employers to record voluntary
transfers or removals would create a disincentive for employers to take
these protective actions (see, e.g., Exs. 25, 15: 69, 156, 358, 406).
Under the final rule (see section 1904.9), mandated removals made in
accordance with an OSHA health standard must be recorded either as days
away from work or as days of restricted work activity, depending on the
specific action an employer takes. Since these actions are mandated, no
disincentive to record is created by this recordkeeping rule.

Some commenters, however, urged OSHA to make an exception from the
recording requirements for cases where the employer voluntarily, or for
preventive purposes, temporarily transfers an employee to another job
or restricts an employee's work activities. OSHA does not believe that
this concept is relevant to the recordkeeping rule, for the following
reasons. Transfers or restrictions taken before the employee has
experienced an injury or illness do not meet the first recording
requirement of the recordkeeping rule, i.e., that a work-related injury
or illness must have occurred for recording to be considered at all. A
truly preventive medical treatment, for example, would be a tetanus
vaccination administered routinely to an outdoor worker. However,
transfers or restrictions whose purpose is to allow an employee to
recover from an injury or illness as well as to keep the injury or
illness from becoming worse are recordable because they involve
restriction or work transfer caused by the injury or illness. All
restricted work cases and job transfer cases that result from an injury
or illness that is work-related are recordable on the employer's Log.

As the regulatory text for paragraph (b)(4) makes clear, the final
rule's requirements for the recording of restricted work cases are
similar in many ways to those pertaining to restricted work under the
former rule. First, like the former rule, the final rule only requires
employers to record as restricted work cases those cases in which
restrictions are imposed or recommended as a result of a work-related
injury or illness. A work restriction that is made for another reason,
such as to meet reduced production demands, is not a recordable
restricted work case. For example, an employer might "restrict"
employees from entering the area in which a toxic chemical spill has
occurred or make an accommodation for an employee who is disabled as a
result of a non-work-related injury or illness. These cases would not
be recordable as restricted work cases because they are not associated
with a work-related injury or illness. However, if an employee has a
work-related injury or illness, and that employee's work is restricted
by the employer to prevent exacerbation of, or to allow recuperation
from, that injury or illness, the case is recordable as a restricted
work case because the restriction was necessitated by the work-related
injury or illness. In some cases, there may be more than one reason for
imposing or recommending a work restriction, e.g., to prevent an injury
or illness from becoming worse or to prevent entry into a contaminated
area. In such cases, if the employee's work-related illness or injury
played any role in the restriction, OSHA considers the case to be a
restricted work case.

Second, for the definition of restricted work to apply, the work
restriction must be decided on by the employer, based on his or her
best judgment or on the recommendation of a physician or other licensed
health care professional. If a work restriction is not followed or
implemented by the employee, the injury or illness must nevertheless be
recorded on the Log as a restricted case. This was also the case under
the former rule.

Third, like the former rule, the final rule's definition of
restricted work relies on two components: whether the employee is able
to perform the duties of his or her pre-injury job, and whether the
employee is able to perform those duties for the same period of time as
before.

The principal differences between the final and former rules'
concept of restricted work cases are these: (1) the final rule permits
employers to cap the total number of restricted work days for a
particular case at 180 days, while the former rule required all
restricted days for a given case to be recorded; (2) the final rule
does not require employers to count the restriction of an employee's
duties on the day the injury occurred or the illness began as
restricted work, providing that the day the incident occurred is the
only day on which work is restricted; and (3) the final rule defines
work as restricted if the injured or ill employee is restricted from
performing any job activity the employee would have regularly performed
at least once per week before the injury or illness, while the former
rule counted work as restricted if the employee was restricted in
performing any activity he or she would have performed at least once
per year.

In all other respects, the final rule continues to treat restricted
work and job transfer cases in the same manner as they were treated
under the former rule, including the counting of restricted days.
Paragraph 1904.7(b)(4)(xi) requires the employer to count restricted
days using the same rules as those for counting days away from work,
using § 1904.7(b)(3)(i) to (viii), with one exception. Like the
former rule, the final rule allows the employer to stop counting
restricted days if the employee's job has been permanently modified in
a manner that eliminates the routine functions the employee has been
restricted from performing. Examples of permanent modifications would
include reassigning an employee with a respiratory allergy to a job
where such allergens are not present, or adding a mechanical assist to
a job that formerly required manual lifting. To make it clear that
employers may stop counting restricted days when a job has been permanently
changed, but not to eliminate the count of restricted work altogether, the rule
makes it clear that at least one restricted workday must be counted,
even if the restriction is imposed immediately. A discussion of the
desirability of counting days of restricted work and job transfer at
all is included in the explanation for the OSHA 300 form and the
§ 1904.29 requirements. The revisions to this category of cases that
have been made in the final rule reflect the views of commenters,
suggestions made by the Keystone report (Ex. 5), and OSHA's experience
in enforcing the former recordkeeping rule.

Paragraph 1904.7(b)(5) Medical Treatment Beyond First Aid

The definitions of first aid and medical treatment have been
central to the OSHA recordkeeping scheme since 1971, when the Agency's
first recordkeeping rule was issued. Sections 8(c)(2) and 24(a) of the
OSH Act specifically require employers to record all injuries and
illnesses other than those "requiring only first aid treatment and
which do not involve medical treatment, loss of consciousness,
restriction of work or motion, or transfer to another job." Many
injuries and illnesses sustained at work do not result in death, loss
of consciousness, days away from work or restricted work or job
transfer. Accordingly, the first aid and medical treatment criteria may
be the criteria most frequently evaluated by employers when deciding
whether a given work-related injury must be recorded.

In the past, OSHA has not interpreted the distinction made by the
Act between minor (i.e., first aid only) injuries and non-minor
injuries as applying to occupational illnesses, and employers have
therefore been required to record all occupational illnesses,
regardless of severity. As a result of this final rule, OSHA will now
apply the same recordability criteria to both injuries and illnesses
(see the discussion of this issue in the Legal Authority section of
this preamble). The Agency believes that doing so will simplify the
decision-making process that employers carry out when determining which
work-related injuries and illnesses to record and will also result in
more complete data on occupational illness, because employers will know
that they must record these cases when they result in medical treatment
beyond first aid, regardless of whether or not a physician or other
licensed health care professional has made a diagnosis.

The former recordkeeping rule defined first aid as "any one-time
treatment and any follow-up visit for the purpose of observation, of
minor scratches, cuts, burns, splinters, and so forth, which do not
ordinarily require medical care." Medical treatment was formerly
defined as "treatment administered by a physician or by registered
professional personnel under the standing orders of a physician."

To help employers determine the recordability of a given injury,
the Recordkeeping Guidelines, issued by the Bureau of Labor Statistics
(BLS) in 1986, provided numerous examples of medical treatments and of
first aid treatments (Ex. 2). These examples were published as mutually
exclusive lists, i.e., a treatment listed as a medical treatment did
not also appear on the first-aid list. Thus, for example, a positive x-ray
diagnosis (fractures, broken bones, etc.) was included among the
treatments generally considered medical treatment, while a negative x-ray
diagnosis (showing no fractures) was generally considered first
aid. Despite the guidance provided by the Guidelines, OSHA continued to
receive requests from employers for interpretations of the
recordability of specific cases, and a large number of letters of
interpretation addressing the distinction between first aid and medical
treatment have been issued. The following sections discuss the
definitions of medical treatment and first aid proposed by OSHA, the
comments received in response to the proposal, and the definition of
medical treatment that OSHA has decided to include in the final rule.

In the proposed rule, OSHA presented a simplified approach: to
define as first aid anything on a list of first aid treatments, and to
define as medical treatment any treatment not on that list.
Specifically, medical treatment was defined as "any medical cure or
treatment beyond first aid" (61 FR 4059).

The proposal contained a comprehensive list of all treatments that
would be considered "first aid" regardless of the provider:

(1) Visit(s) to a health care provider limited to observation

(2) Diagnostic procedures, including the use of prescription
medications solely for diagnostic purposes (e.g. eye drops to dilate
pupils)

(9) Use of any totally non-rigid, non-immobilizing means of support
(e.g. elastic bandages)

(10) Drilling of a nail to relieve pressure for subungual hematoma

(11) Use of eye patches

(12) Removal of foreign bodies not embedded in the eye if only
irrigation or removal with a cotton swab is required

(13) Removal of splinters or foreign material from areas other than
the eyes by irrigation, tweezers, cotton swabs or other simple means
(61 FR 4059)

OSHA also solicited comment on three specific definitional
questions:

(A) Should any treatments on the proposed first aid list be
excluded and should any treatments be added?

(B) Should a list of medical treatments also be provided? Which
treatments?

(C) Should simple administration of oxygen be defined to exclude
more severe procedures such as Intermittent Positive Pressure Breathing
(IPPB)? If so, how?

OSHA received many comments on the general approach taken in the
proposal, i.e., that employers rely on a comprehensive list of first
aid treatment and define any treatment not on that list as medical
treatment. The Agency also received many comments on the individual
items on the proposed first aid list. The following discussion
addresses comments on the general approach adopted in the final rule
and then deals with comments on specific items and OSHA's responses to
each issue.

Commenters supported the proposed approach for a variety of
reasons. For example, some stated that a finite list would improve the
clarity of the definition, reduce confusion for employers, and reduce
inaccuracy in the data (see, e.g., Exs. 15: 87, 95, 122, 127, 163, 185,
188, 395, 338, 242, 270, 269, 263, 347, 377, 386). The statement of the
American Iron and Steel Institute exemplified these comments:

Consistent with its statutory mandate, OSHA's proposal would
also require the recording of all work-related injuries and
illnesses that result in medical treatment beyond first aid. The
expanded and finite list of treatments that constitute first aid
would clarify the task of deciding what to record, because any
treatment that does not appear on this list will be considered a
medical treatment. (Ex. 15: 395)

The Ford Motor Company agreed, stating:

Ford supports that the definition of first aid be modified to
consist of a comprehensive list of treatments. Treatments not found
on the first aid list would be considered medical treatment for
recordkeeping purposes. Assuming that the list will be
comprehensive, it will reduce confusion, lead to consistent
recordkeeping, and greatly simplify the decision making process (Ex.
15: 347).

Some commenters stated that the proposed approach would be simpler
for employers, generate more consistent records, and facilitate better
comparisons of injury and illness data over time (see, e.g., Exs. 15:
13, 122, 127, 242, 270, 269, 263, 283, 297, 347, 359, 377, 405, 407).
According to the Southern Nuclear Operating Company: "Providing a
comprehensive list of all first-aid treatments will remove the current
ambiguity in deciding if a case involves first aid only or if it is
medical treatment. This should provide more consistent recordkeeping
and allow for more meaningful comparisons of accident histories" (Ex.
15: 242, p. 2).

A number of commenters, however, disagreed that defining first aid
by listing first aid treatments was appropriate (see, e.g., Exs. 15:
18, 63, 83, 87, 96, 119, 123, 129, 145, 159, 171, 173, 176, 182, 201,
225, 229, 247, 260, 262, 265, 272, 281, 303, 307, 308, 335, 337, 338,
341, 348, 349, 357, 364, 375, 380, 382, 389, 396, 401, 413, 418, 430,
434). Several of these commenters argued that it would not be possible
to list every first aid treatment (see, e.g., Exs. 15: 225, 335, 337,
396, 430). Some commenters stated that the proposed approach would not
provide sufficient clarity, would involve a definition of medical
treatment that was overly vague, and would not be helpful to employers
without additional definitions (see, e.g., Exs. 15: 159, 171, 176, 229,
281, 348, 357, 396). Another group of commenters stated that the
approach did not provide flexibility to adapt to changing medical
practice, and would not be capable of responding to changes in
technology (see, e.g., Exs. 15: 18, 63, 96, 335, 348). The comments of
the Dow Chemical Corporation are representative of these views:

Dow believes that OSHA should provide non-exhaustive lists for
both first aid and medical treatment, rather than defining one
solely by the exclusion of the other. Dow believes this suggested
approach is necessary to take into account that these lists cannot
be comprehensive or all-inclusive as it is impossible to list every
possible contingency. Moreover, technology is constantly changing
and cannot be accounted for in a static list. For example, one can
now obtain Steri-Strips over the counter where previously it would
have been considered "medical treatment." Since exhaustive lists
do not allow the flexibility to take these technologies into account
nor capture every possible situation, much would still be left to
supposition. By providing an illustrative list for both first aid
and medical treatment, OSHA would be giving adequate guidance for
the regulated community. Dow recommends OSHA make this modification
in the final rule. (Ex. 15: 335)

A number of commenters urged OSHA to use the definition of medical
treatment as a way to focus primarily on the seriousness of the injury
or illness (see, e.g., Exs. 15: 147, 201, 308, 341, 375, 395, 418). For
example, the American Petroleum Institute remarked "* * * the
fundamental issue is the seriousness of the injury or illness, not the
treatment" (Ex. 375-A, p. 7). The Caterpillar Corporation provided
lengthy comments on the definition of medical treatment, including the
following criticism of the proposed approach:

Insignificant injuries for which medical treatment is provided
do not provide valuable information for safety and health analysis.
This proposal attempts to oversimplify the recordkeeping process
which will result in many insignificant injuries and illnesses being
recorded because of the unnecessarily restrictive definitions for
first aid and medical treatment. The definition and listing of first
aid cannot be a comprehensive or exclusive listing and definition.
Medical treatment may be provided for insignificant injuries and
significant injuries may receive little or no medical treatment. The
medical treatment process and options are too complicated to be
adequately described by one list which makes the treatments mutually
exclusive. OSHA should continue the current practice with lists for
both first aid and medical treatment. Further, the treatments cannot
be mutually exclusive since treatment does not necessarily recognize
the severity of the injury or illness (Ex. 15: 201, p. 4).

Some commenters who disagreed with the proposed approach provided
suggestions and alternative definitions. A number of commenters
suggested that OSHA keep its former definitions of first aid and
medical treatment (see, e.g., Exs. 15: 83, 119, 123, 129, 145, 225,
337, 380, 389, 418, 430). Several commenters urged OSHA to update the
former rule's definitions using the proposed rule's listing of first
aid treatments (see, e.g., Exs. 15: 83, 380, 418). Other commenters
urged OSHA not to change the definition in any way because it would
produce a break in the historical series of occupational injury and
illness data (see, e.g., Exs. 15: 123, 145, 389).

Several commenters made suggestions that they believed would
introduce flexibility into the proposed rule's first aid definition.
The National Restaurant Association suggested that OSHA add a
"catchall" category to the list to include "any similar type of
treatment" (Ex. 15: 96, p. 5). The General Electric Company urged that
the following language be added: "Other treatments may be considered
first aid so long as they are recognized as first aid actions and [are]
not listed in the definition of medical treatment" (Ex. 15: 349, p.
8). Some commenters suggested allowing the health care professional to
determine whether the activity was properly classified as first aid or
medical treatment (see, e.g., Exs. 27; 15: 131, 173, 176, 201, 334,
382, 392, 434). A typical comment along these lines was one from the
American Forest and Paper Association, which stated that "* * * we
believe a qualified health care professional should have the authority
to determine what is properly characterized as first aid and what
should be properly characterized as medical treatment" (Ex. 15:334, p.
7). Two commenters suggested that the health care professional be
allowed to decide whether an action constituted first aid or medical
treatment only if the treatment was not on either the first aid or
medical treatment lists (see, e.g., Exs. 27; 15: 382, 392, 434).

One commenter, the American Network of Community Options and
Resources, supported the development of a finite first aid list, but
suggested that OSHA define medical treatment as "any treatment that
requires professional medical intervention" (Ex. 15: 393, p. 8).

A number of commenters agreed with OSHA that the first aid
definition should focus on the type of treatment given, and not on the
provider (see, e.g., Exs. 15: 185, 308, 338, 349, 364, 443). Other
comments argued that a distinction between first aid and medical
treatment could be made on the basis of the number of times a
particular treatment had been given. The AFL-CIO expressed a concern
that, absent some consideration of the number of times a treatment
was administered, many serious injuries and illnesses would no longer
be recordable and valuable data would be lost. The AFL-CIO stated that
longer term treatments are more likely than shorter ones to be indicative
of medical treatment:

The proposed change in definition would seem to exclude cases
where there are continued instances of the listed first aid
treatments from the recordkeeping requirements. Those conditions
which require continued treatments, including continued use of non-prescription drugs and repeated cleaning, flushing or soaking of
wounds would no longer be recordable. The AFL-CIO believes that
first aid should be limited to one time treatments as is the current
practice, so that serious conditions which require multiple
treatments are recorded on the log. We strongly urge OSHA to
maintain the definition of first aid in the current recordkeeping
guidelines and to use the listed conditions as examples of first
aid. (Ex. 15: 418).

Similarly, the TIMEC group of companies believed that any one-time
treatment should be considered first aid, saying:

It is also TIMEC's perspective that the exclusion of a "one
time medical treatment" provision from the list of first aids is
unduly restrictive. Any condition that can be resolved or treated in
one visit to the doctor should be considered minimal or negligible
in the context of record keeping for industrial injuries. Under the
proposed regulation, a condition that results in a one time medical
treatment theoretically could be given the same weight, in terms of
OSHA recordability, as a broken or severed limb. This seems unduly
restrictive. Further, it may inhibit some employers from taking
injured employees to the doctor in the first instance, in order to
avoid a "OSHA recordable injury." An employer may otherwise hope
that the matter will heal itself without infection. This seems
contrary to the goal of the Occupational Safety and Health Act, to
ensure appropriate and prompt medical treatment and safety services
to employees (Ex. 15: 18, p. 2).

In response to these comments and the evidence in the record of
this rulemaking, the final rule essentially continues the proposed
approach, i.e., it includes a list of first-aid treatments that is
inclusive, and defines as medical treatment any treatment not on that
list. OSHA recognizes, as several commenters pointed out, that no one
can predict how medical care will change in the future. However, using
a finite list of first aid treatments -- knowing that it may have to be
amended later based on new information -- helps to limit the need for
individual judgment about what constitutes first aid treatment. If OSHA
adopted a more open-ended definition or one that relied on the judgment
of a health care professional, employers and health care professionals
would inevitably interpret different cases differently, which would
compromise the consistency of the data. Under the system adopted in the
final rule, once the employer has decided that a particular response to
a work-related illness or injury is in fact treatment, he or she can
simply turn to the first aid list to determine, without elaborate
analysis, whether the treatment is first aid and thus not recordable.
OSHA finds that this simple approach, by providing clear, unambiguous
guidance, will reduce confusion for employers and improve the accuracy
and consistency of the data.

The need for clear and unambiguous guidance is also OSHA's reason
for not considering treatments from the first aid list to be medical
treatment if carried out for a lengthier time, as suggested by the AFL-CIO.
If an injured or ill employee is given first-aid treatment, such
as non-prescription medications (at non-prescription strength), hot or
cold therapy, massage therapy, or some other treatment on the first aid
list, the treatment should not be considered medical treatment for OSHA
recordkeeping purposes, regardless of the length of time or number of
applications used. This approach will ensure that the recordkeeping
system excludes truly minor injuries and illnesses, and capture the
more serious cases that require treatment beyond first aid.

In the final rule, OSHA has adopted the approach taken in the
proposal, in a slightly modified form. Under the final rule, employers
will be able to rely on a single list of 14 first aid treatments. These
treatments will be considered first aid whether they are provided by a
lay person or a licensed health care professional. However, the final
rule includes the following definition of medical treatment;
"management and care of a patient for the purpose of combating disease
or disorder;" this definition excludes observation and counseling,
diagnostic procedures, and the listed first aid items. OSHA believes
that providing a definition of medical treatment for recordkeeping
purposes will help employers who are uncertain about what constitutes
medical treatment. OSHA will also provide examples of medical
treatments covered by this definition in compliance assistance
documents designed to help smaller businesses comply with the rule. The
following discussion describes the definitions of first aid and medical
treatment in the final rule and explains the Agency's reasons for
including each item on the first aid list.

Final Rule

The final rule, at § 1904.7(b)(5)(i), defines medical treatment
as the management and care of a patient for the purpose of combating
disease or disorder. For the purposes of Part 1904, medical treatment
does not include:

(A) Visits to a physician or other licensed health care
professional solely for observation or counseling;

(B) The conduct of diagnostic procedures, such as x-rays and
blood tests, including the administration of prescription
medications used solely for diagnostic purposes (e.g., eye drops to
dilate pupils); or

(C) "first aid" as defined in paragraph (b)(5)(ii) of this
section.

The final rule, at paragraph (b)(5)(ii), defines first aid as
follows:

(A) Using a nonprescription medication at nonprescription
strength (for medications available in both prescription and
non-prescription form, a recommendation by a physician or other licensed
health care professional to use a non-prescription medication at
prescription strength is considered medical treatment for
recordkeeping purposes).

(D) Using wound coverings, such as bandages, Band-Aids, gauze pads, etc.; or using butterfly bandages or
Steri-Strips (other wound closing devices, such as
sutures, staples, etc. are considered medical treatment);

(E) Using hot or cold therapy;

(F) Using any non-rigid means of support, such as elastic
bandages, wraps, non-rigid back belts, etc. (devices with rigid
stays or other systems designed to immobilize parts of the body are
considered medical treatment for recordkeeping purposes);

(H) Drilling of a fingernail or toenail to relieve pressure, or
draining fluid from a blister;

(I) Using eye patches;

(J) Removing foreign bodies from the eye using only irrigation
or a cotton swab;

(K) Removing splinters or foreign material from areas other than
the eye by irrigation, tweezers, cotton swabs, or other simple
means;

(L) Using finger guards;

(M) Using massages (physical therapy or chiropractic treatment
are considered medical treatment for recordkeeping purposes);

(N) Drinking fluids for relief of heat stress.

This list of first aid treatments is comprehensive, i.e., any
treatment not included on this list is not considered first aid for
OSHA recordkeeping purposes. OSHA considers the listed
treatments to be first aid regardless of the professional
qualifications of the person providing the treatment; even when these
treatments are provided by a physician, nurse, or other health care
professional, they are considered first aid for recordkeeping purposes.

The definition of medical treatment in the final rule differs both
from the definition used in the former rule ("treatment administered
by a physician or by registered professional personnel under the
standing orders of a physician") and the proposed definition
("medical treatment includes any medical care or treatment beyond
first aid"). The medical treatment definition in the final rule is
taken from Dorland's Illustrated Medical Dictionary, and is thus
consistent with usage in the medical community.

The three listed exclusions from the definition -- visits to a health
care professional solely for observation or counseling; diagnostic
procedures, including prescribing or administering of prescription
medications used solely for diagnostic purposes; and procedures defined
in the final rule as first aid -- clarify the applicability of the
definition and are designed to help employers in their determinations
of recordability.

OSHA received several comments on the proposed definition of
medical treatment. These dealt primarily with the general approach OSHA
was proposing, i.e., the use of an all-inclusive list of first aid
applications, and defining any treatment not on the list as medical
treatment. The remaining comments (see, e.g., Exs. 15: 87, 171, 173,
176, 182, 229, 247, 260, 262, 265, 272, 303, 307, 357, 338, 375, 382,
396, 401, 413) urged OSHA to develop an all-inclusive list of medical
treatments, to provide examples of some medical treatments, or to
provide a non-mandatory appendix with such examples.

OSHA has not adopted the suggestions made by these commenters
because the Agency finds that simplicity and clarity are best served by
adopting a single, all-inclusive first aid list and explicitly stating
that any treatment not on the list is considered, for recordkeeping
purposes, to be medical treatment. Employers will thus be clear that
any condition that is treated, or that should have been treated, with a
treatment not on the first aid list is a recordable injury or illness
for recordkeeping purposes.

This simplified approach addresses the concerns expressed by
several commenters, who emphasized that the distinction between first
aid and medical treatment made in the Act was meant to ensure that all
occupational injuries and illnesses that were other than minor be
captured by OSHA's recordkeeping system but that minor conditions not
be recorded (see, e.g., Exs. 15-308, 375A, p. 7). As the American
Petroleum Institute commented (Ex. 375A), "* * * the fundamental issue
is the seriousness of the injury or illness, not the treatment." OSHA
concludes, based on its review of the record, that the final rule's
definitions of medical treatment and first aid will work together to
achieve Congress's intent, as specified in sections 8 and 24 of the
Act.

In making its decisions about the items to be included on the list
of first aid treatments, OSHA relied on its experience with the former
rule, the advice of the Agency's occupational medicine and occupational
nursing staff, and a thorough review of the record comments. In
general, first aid treatment can be distinguished from medical
treatment as follows:

First aid is usually administered after the injury or
illness occurs and at the location (e.g., workplace) where the injury
or illness occurred.

First aid generally consists of one-time or short-term
treatment.

First aid treatments are usually simple and require little
or no technology.

First aid can be administered by people with little
training (beyond first aid training) and even by the injured or ill
person.

First aid is usually administered to keep the condition
from worsening, while the injured or ill person is awaiting medical
treatment.

The final rule's list of treatments considered first aid is based
on the record of the rulemaking, OSHA's experience in implementing the
recordkeeping rule since 1986, a review of the BLS Recordkeeping
Guidelines, letters of interpretation, and the professional judgment of
the Agency's occupational physicians and nurses.

Specific Items on the Proposed First Aid List in the NPRM

Item 1 listed in the NPRM definition of first aid was "Visit(s) to
a health care provider limited to observation." Two commenters raised
the issue of counseling with regard to the recording of mental
disorders (Exs. 15: 226, 395). The American Ambulance Association (AAA)
stated that: "This is and should be considered preventive treatment
aimed at preventing stress-related illnesses. OSHA's adoption of such a
policy will allow and encourage employers to provide CISD (critical
incident stress debriefing) counseling" (Ex. 15: 226, p. 3). The AAA
recommended that OSHA add preventive counseling, such as critical
incident stress debriefing, to the first aid listing.

OSHA agrees that counseling should not be considered medical
treatment and has expressly excluded it from the definition of medical
treatment. Counseling is often provided to large groups of workers who
have been exposed to potentially traumatic events. Counseling may be
provided on a short-term basis by either a licensed health care
professional or an unlicensed person with limited training. OSHA
believes that capturing cases where counseling was the only treatment
provided do not rise to the level of recording; other counseling cases,
where prescription medications, days away from work, or restricted work
activity is involved, would be captured under those criteria.

The Brookhaven National Laboratory recommended that the first aid
list include any return visit to evaluate diagnostic decisions (Ex. 15:
163). Caterpillar, Inc. suggested that visits for observation, testing
or diagnosis of injuries should also be considered first aid (Ex. 15:
201). The Chemical Manufacturers Association and Marathon Oil Company
encouraged OSHA to add visits to the hospital for observation to the
first-aid list (Exs. 15: 308, 310)

OSHA generally agrees with these commenters. OSHA believes that
visits to a health care professional for observation, testing,
diagnosis, or to evaluate diagnostic decisions should be excluded from
the definition of medical treatment in the final rule. Visits to a
hospital, clinic, emergency room, physician's office or other facility
for the purpose of seeking the advice of a health care professional do
not themselves constitute treatment. OSHA believes that visits to a
hospital for observation or counseling are not, of and by themselves,
medical treatment. Accordingly, the final rule excludes these
activities from the definition of medical treatment.

Item 2 listed in the NPRM definition of first aid was "Diagnostic
procedures, including the use of prescription medications solely for
diagnostic purposes (e.g. eye drops to dilate pupils)." Several
commenters believed that diagnostic procedures such as x-rays and blood
tests should not be considered medical treatment (see, e.g., Exs. 15:
176, 301, 347, 349, 375, 443). For example, General Electric (GE)
stated "Diagnostic tests should not be considered medical treatment.
Considering a diagnostic test to be a recordable injury without
consideration of the test results is illogical and will establish a
disincentive to test. GE's position is that a definition of medical
treatment should also be included in the proposed regulation. Proposed
wording is as follows: "Medical treatment" includes any medical care
or treatment beyond "first aid" and does not include diagnostic
procedures."

Two commenters opposed the exclusion of diagnostic procedures. The
National Institute for Occupational Safety and Health (NIOSH) said
"the term diagnostic procedures" in item #2 is too broad, and the
example given is vague. These procedures should not be considered first
aid" (Ex. 15: 407, p. 17). The United Steelworkers of America stated
" * * * delete the use of prescription drugs for diagnostic purposes.
This will be abused by the company" (Ex. 15: 429).

OSHA disagrees with NIOSH that the exclusion for diagnostic
procedures is overly vague. It is the experience of the Agency that
employers generally understand the difference between procedures used
to combat an injury or illness and those used to diagnose or assess an
injury or illness. In the event that the employer does not have this
knowledge, he or she may contact the health care professional to obtain
help with this decision. If the employer does not have this knowledge,
and elects not to contact the health care professional, OSHA would
expect the employer to refer to the first aid list and, if the
procedure is not on the list, to presume that the procedure is medical
treatment and record the case. OSHA also does not believe that this
provision will be subject to abuse, because the procedures used for
diagnosis are generally quite different from those involving treatment.

OSHA agrees with those commenters who recommended the exclusion of
diagnostic procedures from the definition of medical treatment.
Diagnostic procedures are used to determine whether or not an injury or
illness exists, and do not encompass therapeutic treatment of the
patient. OSHA has included such procedures on the first aid list in the
final rule with two examples of diagnostic procedures to help reduce
confusion about the types of procedures that are excluded.

Item 3 listed in the NPRM definition of first aid was "Use of
nonprescription medications, including antiseptics." This issue
received a large number of comments, more than any other issue related
to the proposed definition of medical treatment and first aid. Most of
the comments requested that OSHA consider some uses of prescription
drugs to be first aid treatment (see, e.g., Exs. 15: 13, 60, 147, 159,
201, 218, 225, 246, 247, 297, 308, 332, 335, 336, 348, 349, 359, 374,
375, 386, 387, 395, 405, 414, 430, 434). The most common reason given
by commenters for treating some prescription drugs as first aid was
their use when they were given for preventive rather than therapeutic
intervention. Several commenters asked for a broad exception from
medical treatment for prescription drugs taken for preventive or
prophylactic purposes (see, e.g., Exs. 55X 15: 247, 336, 375, 395). For
example, the American Iron and Steel Institute stated "AISI encourages
OSHA to make one change: add the use of prescription medications for
prophylactic reasons to the first aid list. In many instances, a health
care professional will prescribe antibiotics as a precaution against a
possible infection. An employer should not be required to record a
minor injury solely because a health care professional opted to respond
aggressively" (Exs. 15: 395; 55X).

Several commenters asked for an exception from the medical
treatment for antibiotics and antiseptics (see, e.g., Exs. 15: 218,
246, 332, 349, 375, 395, 414, 430). Raytheon Constructors, Inc.
commented: "We believe the following treatments should be added [to
the first aid list]: Application of antiseptics, as often as needed.
This is for prevention of infection after an injury. Infection is not
caused by the work environment. Treatment for an infection, such as
prescription drugs. Again, infection is not the result of the work
environment" (Ex. 15: 414).

A number of employers asked OSHA to define the use of prescription
drugs for comfort, or to relieve pain or inflammation, as first aid
(see, e.g., Exs. 15: 60, 147, 201, 225, 247, 308, 348, 349). The
American Gas Association stated that: we propose that 'prescription
medications for comfort' be added to the list. Medical practitioners
frequently "prescribe drugs to comfort people after an injury" (Ex.
15: 225), and the Proctor and Gamble Company stated "[p]rescription
medication to prevent complications or reduce pain should not be a sole
basis for recording injuries and illnesses. It is our view that
preventive measures or action taken to reduce pain should not in
themselves be the basis for recording" (Ex. 15: 147). Entergy Services
Inc. suggested that OSHA include Benadryl shots as first aid since they
are often given to prevent allergic reactions to insect bites and
poison oak/ivy/sumac (Ex. 15: 13). The Arizona Public Service Company
remarked: "Treatment for bee stings should be addressed (perhaps
listed on the First Aid list). For instance, if a doctor administers
the same treatment that an employee could have administered themselves
it should not be considered medical treatment" (Ex. 15: 247).

Another set of comments suggested that prescription medications
should be considered first aid if they were used only once or for a
limited period of time. A number of comments requested that OSHA
continue to treat a single dose of prescription medication as first
aid. (see, e.g., Exs. 15: 201, 332, 348, 349, 359, 374, 386, 387, 405,
430, 434). Typical of these comments was one from the National Safety
Council:

[t]hat administration of a single dose of prescription medication on
first visit for minor injury or discomfort remain first aid. For
example, minor muscle aches and pains may occasionally be eased with
a single dose of 800 mg ibuprofen. This is currently considered
first aid and should remain so. Another example would be the
treatment of first degree burns. This is currently considered first
aid treatment, even though treatment frequently involves the
application of a single dose of prescription-strength ointment.
(Ex.15: 359, p. 12)

Other commenters suggested that prescription medications used for
24 hours, 48 hours, or five days be considered first aid (see, e.g.,
Exs. 15: 159, 246, 297, 308, 335, 375).

In the final rule, OSHA has not included prescription medications,
whether given once or over a longer period of time, in the list of
first aid treatments. The Agency believes that the use of prescription
medications is not first aid because prescription medications are
powerful substances that can only be prescribed by a licensed health
care professional, and for the majority of medications in the majority
of states, by a licensed physician. The availability of these
substances is carefully controlled and limited because they must be
prescribed and administered by a highly trained and knowledgeable
professional, can have detrimental side effects, and should not be
self-administered.

Some commenters asked whether a case where a prescription was
written by a physician and given to the injured or ill employee but was
not actually filled or taken would be recordable. In some instances the
employee, for religious or other reasons, refuses to fill the
prescription and take the medicine. In other cases, the prescriptions
are issued on a "take-as-needed" basis. In these cases, the health
care professional gives the patient a prescription, often for pain
medication, and tells the patient to fill and take the prescription if
he or she needs pain relief. OSHA's long-standing policy has been that if a
prescription of this type has been issued, medical treatment has been
provided and the case must therefore be recorded. Numerous commenters
asked OSHA to reverse or clarify its policy and consider these
prescriptions to be first aid in the final rule (see, e.g., Exs. 15:
13, 105, 247, 260, 262, 279, 281, 295, 300, 308, 359, 362, 386, 414).
For example, the National Safety Council requested that "OSHA should
specify whether the treatment must actually be given or merely be
appropriate or normal for the injury or illness. For example, is
medical treatment given when a prescription is written or when it is
filled or when it is taken by the employee" (Ex. 15: 359).

OSHA has decided to retain its long-standing policy of requiring
the recording of cases in which a health care professional issues a
prescription, whether that prescription is filled or taken or not. The
patient's acceptance or refusal of the treatment does not alter the
fact that, in the health care professional's judgment, the case
warrants medical treatment. In addition, a rule that relied on whether
a prescription is filled or taken, rather than on whether the medicine
was prescribed, would create administrative difficulties for employers,
because such a rule would mean that the employer would have to
investigate whether a given prescription had been filled or the
medicine had actually been taken. Finally, many employers and employees
might well consider an employer's inquiry about the filling of a
prescription an invasion of the employee's privacy. For these reasons,
the final rule continues OSHA's longstanding policy of considering the
giving of a prescription medical treatment. It departs from former
practice with regard to the administration of a single dose of a
prescription medicine, however, because there is no medical reason for
differentiating medical treatment from first aid on the basis of the
number of doses involved. This is particularly well illustrated by the
recent trend toward giving a single large dose of antibiotics instead
of the more traditional pattern involving several smaller doses given
over several days.

Yet another issue raised by commenters about medications involved
the use of non-prescription medications at prescription strength. In
recent years, many drugs have been made available both as prescription
and "over-the-counter" medications, depending on the strength or
dosage of the product. Some examples include various non-steroidal
anti-inflammatory drugs (NSAIDs), such as ibuprofen, and cortisone
creams. OSHA's policy has been that if these drugs are used in the
over-the-counter form they are first aid, but if they are used in
prescription form, they are medical treatment. Some commenters stated
that these drugs should always be considered first aid (see, e.g., Exs.
15: 300, 308, 414). For example, Heritage Environmental Services, Inc.
stated:

While the proposed rule includes the use of non-prescription
medications in the definition of first aid, it fails to address the
use of prescription quantities of over-the-counter medications
(i.e., Tylenol, Motrin). It has been Heritage's experience that the
requirement of the current rule to record cases where physicians
have prescribed over the counter medications has resulted in the
inclusion of a broad range of minor cases, that in all other
respects would not have been recordable. In working with
occupational health care providers for many years, Heritage has
found that frequently, physicians prescribe prescription quantities
of over the counter medications for reasons other than the severity
of the injury. Many physicians are unaware that the distribution of
OTC medications in such a manner results in an OSHA recordable
injury/illness.* * * Heritage strongly favors the inclusion of a
statement within the definition of first aid that eliminates the
need to record cases where the sole reason for the recording of the
case is the administration of prescription quantities of over-the-counter
medications. (Ex. 15: 300)

Other commenters stated that the use of nonprescription medications
should be considered medical treatment if they are used at prescription
strength (Ex. 15: 279) or that the continued use of non-prescription
drugs, especially anti-inflammatory drugs, should be considered medical
treatment (see, e.g., Exs. 15: 362, 371, 380, 418). The Union of
Needletrades, Industrial and Textile Employees (UNITE) stated that
"the self-administration of medication, when used on a recurring
basis, should trigger the recording of cases" (Ex. 15: 380), and the
United Food and Commercial Workers Union, pointed out that "When the
employee reports pain that has lasted for over a week, they are given
over-the-counter medication for as long as they ask. These cases, which
can go on for a month or longer, are never recorded" (Ex. 15: 371).

The final rule does not consider the prescribing of non-prescription
medications, such as aspirin or over-the-counter skin
creams, as medical treatment. However, if the drug is one that is
available both in prescription and nonprescription strengths, such as
ibuprofen, and is used or recommended for use by a physician or other
licensed health care professional at prescription strength, the medical
treatment criterion is met and the case must be recorded. There is no
reason for one case to be recorded and another not to be recorded
simply because one physician issued a prescription and another told the
employee to use the same medication at prescription strength but to
obtain it over the counter. Both cases received equal treatment and
should be recorded equally. This relatively small change in the
recordkeeping rule will improve the consistency and accuracy of the
data on occupational injuries and illnesses and simplify the system as
well.

Two commenters asked OSHA to add non-prescription ointments to item
3 on the first aid list (Exs. 15: 308, 443). The final rule simply
lists non-prescription medications, and expects non-prescription
medications to be included regardless of form. Therefore, non-prescription
medicines at non-prescription strength, whether in
ointment, cream, pill, liquid, spray, or any other form are considered
first aid. OSHA has also removed antiseptics from the description of
non-prescription medications. Following the same logic used for
ointments, there is no need to list the variety of possible uses of
non-prescription medications. Non-prescription medicines are first aid
regardless of the way in which they are used.

Item 4 listed in the NPRM definition of first aid was "Simple
administration of oxygen." Some commenters agreed with OSHA's proposal
to define the giving of oxygen as first aid (see, e.g., Exs. 15: 34,
74, 78, 201, 281, 378, 414).

Several commenters, however, asked OSHA to provide more guidance as
to what qualified as the "simple" administration of oxygen (see,
e.g., Exs. 15: 13, 170, 188, 229, 260, 262, 265, 272, 303, 374, 401,
405), while others suggested alternatives that would make some uses of
oxygen first aid and other uses medical treatment. The American
Petroleum Institute recommended: "Simple oxygen administration is
standard operating procedure for EMTs and should remain first aid.
Oxygen therapy, if prescribed, should be considered medical treatment"
(15: 375). A group of utilities said "Simple administration of oxygen
should be defined to include the preventive aspects following an
injury. This would include, for example, administration at the pre-hospital site or while in the emergency room or hospital for
observation. Identifying oxygen administration in this manner would
eliminate the need to identify which of the more advanced uses of
oxygen should be considered as medical treatment" (see, e.g., Exs. 15:
260, 262, 265, 401).

A number of commenters opposed the inclusion of oxygen as a first
aid treatment (see, e.g., Exs. 15: 9, 87, 156, 290, 350, 395, 415,
429). The American Red Cross stated:

The simple administration of oxygen * * * is inappropriately
considered first aid. Simple administration of oxygen is not so
simple. If oxygen is administered to someone with chronic pulmonary
disease (a medical condition not generally recognized by untrained
individuals), the victim could die. Carbon dioxide build-up in the
blood forces an individual with this condition to breathe;
therefore, administration of oxygen would obstruct the involuntary
breathing action, resulting in pulmonary arrest. Red Cross would
argue that no administration of oxygen is "simple" (Ex. 15: 290).

The United Brotherhood of Carpenters Health & Safety Fund of North
America (USC H&SF) remarked, "[w]e urge that OSHA remove the simple
administration of oxygen from first aid treatment. This procedure
requires considerable training above what is recognized as First Aid by
either the Red Cross's or National Safety Council's First Aid training
courses" (Ex. 15: 350). The Muscatine Iowa Chamber of Commerce Safety
Committee added:

We feel that oxygen administration, as a first aid treatment
would extend beyond the intent of the standards. The training and
equipment requirements for the delivery of oxygen are extensive and
beyond the simple first aid kits. We believe that the delivery of
even the most minimal amount of oxygen constitutes an advanced level
of care to an employee. All oxygen administration should be
considered as medical treatment, no matter how delivered or how much
is used, for whatever the reason" (Ex. 15: 87, p. 4).

OSHA is persuaded by the views of the Red Cross and others, which
point to the potential complexities and consequences of the
administration of oxygen. Accordingly, the Agency has decided to remove
the use of oxygen from the first aid list and to consider any use of
oxygen medical treatment. Oxygen administration is a treatment that can
only be provided by trained medical personnel, uses relatively complex
technology, and is used to treat serious injuries and illnesses. The
use of any artificial respiration technology, such as Intermittent
Positive Pressure Breathing (IPPB), would also clearly be considered
medical treatment under the final rule.

Item 5 listed in the NPRM definition of first aid was
"administration of tetanus or diphtheria shot(s) or booster(s)."
These treatments have been considered first aid by OSHA for some time
when they are administered routinely, i.e., in the absence of an injury
or illness (see the Recordkeeping Guidelines (Ex. 2, p. 43)). Several
commenters expressed their support for continuing to include tetanus
and diphtheria shots and boosters as first aid (see, e.g., Exs. 15:
197, 201, 218, 247, 302, 308, 348, 385, 386, 393). Bell Atlantic
commented that "Bell Atlantic supports the proposed inclusion of
tetanus/diphtheria shots on the first aid list. Such preventative
actions should not be considered medical treatment" (Ex. 15: 218). One
commenter, Countrymark Cooperative, Inc., agreed that tetanus shots or
boosters should be considered first aid, but did not believe diphtheria
shots or boosters should be (Ex. 15: 9).

Two commenters recommended that tetanus and diphtheria shots be
considered medical treatment, whether or not they are administered in
connection with a work-related injury or illness. The American Red
Cross stated, "inappropriately considered * * * administration of
diphtheria and tetanus shots or boosters cannot be performed without a
prescription from a physician. The person administering the shots must
also be cognizant of potential side effects, i.e., anaphylactic shock,
which can result from such an action, and be prepared to address them"
(Ex. 15: 290). The International Brotherhood of Teamsters added
"International Brotherhood of Teamsters encourages OSHA to discontinue
tetanus and diphtheria booster shots as first aid. They should be
considered medical treatment. They are usually administered both after
exposure and before diagnosis. The International Brotherhood of
Teamsters considers it similar to the prophylaxis medical treatment
given after exposure to Hepatitis B Virus" (Ex. 15: 369).

A number of commenters recommended the addition to the first aid
list of other immunizations, including gamma globulin; vaccines for
hepatitis B, hepatitis C, and rabies; or other prophylactic
immunizations (see, e.g., Exs. 15: 197, 201, 218, 302, 308, 347, 348,
386). Caterpillar, Inc. recommended, "[c]learly exclude any
immunizations and inoculations which are preventative in nature.
Immunizations and inoculations are not usually provided in response to
a specific injury or illness and should be excluded from OSHA records"
(Ex. 15: 201).

In the final rule, tetanus immunizations are included as item B on
the first aid list. These immunizations are often administered to a
worker routinely to maintain the required level of immunity to the
tetanus bacillus. These immunizations are thus based not on the
severity of the injury but on the length of time since the worker has
last been immunized.

The issue of whether or not immunizations and inoculations are
first aid or medical treatment is irrelevant for recordkeeping purposes
unless a work-related injury or illness has occurred. Immunizations and
inoculations that are provided for public health or other purposes,
where there is no work-related injury or illness, are not first aid or
medical treatment, and do not in themselves make the case recordable.
However, when inoculations such as gamma globulin, rabies, etc. are
given to treat a specific injury or illness, or in response to
workplace exposure, medical treatment has been rendered and the case
must be recorded. The following example illustrates the distinction
OSHA is making about inoculations and immunizations: if a health care
worker is given a hepatitis B shot when he or she is first hired, the
action is considered first aid and the case would not be recordable; on
the other hand, if the same health care worker has been occupationally
exposed to a splash of potentially contaminated blood and a hepatitis B
shot is administered as prophylaxis, the shot constitutes medical
treatment and the case is recordable.

Item 6 listed in the NPRM definition of first aid was "cleaning,
flushing or soaking wounds on skin surface." OSHA received only one
specific comment on this item. The American Federation of State,
County, and Municipal Employees (AFSCME) commented: "Cleaning,
flushing or soaking wounds on skin surfaces. This is the initial
treatment for needle stick injuries. AFSCME requests that OSHA clarify
its position that cleaning, flushing or soaking of sharps injuries is
considered a medical treatment" (Ex. 15: 362).

The AFL-CIO disagreed with OSHA's proposed approach to skin surface
wounds, based on the belief that valuable information about serious
work-related injuries would be lost if the approach were adopted:

The proposed change in definition would seem to exclude cases
where there are continued instances of the listed first aid
treatments from the recordkeeping requirements. Those conditions
which require continued treatments, including continued use of
non-prescription drugs and repeated cleaning, flushing or soaking of
wounds would no longer be recordable. The AFL-CIO believes that
first aid should be limited to one time treatments as is the
current practice, so that serious conditions which require multiple
treatments are recorded on the log. We strongly urge OSHA to
maintain the definition of first aid in the current recordkeeping
guidelines and to use the listed conditions as examples of first aid
(Ex. 15: 418).

OSHA believes that cleaning, flushing or soaking of wounds on the
skin surface is the initial emergency treatment for almost all surface
wounds and that these procedures do not rise to the level of medical
treatment. This relatively simple type of treatment does not require
technology, training, or even a visit to a health care professional.
More serious wounds will be captured as recordable cases because they
will meet other recording criteria, such as prescription medications,
sutures, restricted work, or days away from work. Therefore, OSHA has
included cleaning, flushing or soaking of wounds on the skin surface as
an item on the first aid list. As stated previously, OSHA does not
believe that multiple applications of first aid should constitute
medical treatment; it is the nature of the treatment, not how many
times it is applied, that determines whether it is first aid or medical
treatment.

Item 7 listed in the NPRM definition of first aid was "Use of
wound coverings, such as bandages, gauze pads, etc." These treatments
were considered first aid treatments by the Recordkeeping Guidelines
(Ex. 2, p. 43). OSHA received no comments opposing the proposed
definition of wound coverings as first aid. However, the issue of
whether or not butterfly bandages and Steri-stripsTM are
first aid was raised. Steri-stripsTM are a product of the 3M
Company, which advertises them as a comfortable adhesive strip used to
secure, close and support small cuts, wounds and surgical incisions.
"Butterfly bandages" is a generic term used for similar adhesive
strips designed for small wounds.

All of the commenters who raised the issue suggested that OSHA add
Steri-strips and butterfly bandages to this first aid item (see, e.g.,
Exs. 15: 45, 108, 163, 201, 247, 308, 332, 349, 387, 405). Some
commenters believed that the use of Steri-stripsTM and
butterfly bandages should always be considered first aid (see, e.g.,
Exs. 15: 45, 247, 332, 349, 387), while others believed they should be
considered medical treatment only when used as a replacement for, or in
lieu of, sutures (see, e.g., Exs. 15: 108, 163, 201, 308, 405). The
Westinghouse Electric Corporation stated, "Steri-strips should be
added to the list of first-aid treatments, when determined by the
attending medical provider that the Steri-strip was not
applied in lieu of sutures. Often medical care providers use a Steri-strip
rather than a bandage, even though the injury does
not require closure of any type" (Ex. 15: 405).

These treatments were listed in the 1986 Recordkeeping Guidelines
as medical treatment when applied "in lieu of sutures" (Ex. 2, p.
43). In the past, this provision in the Guidelines has been the subject
of several letters of interpretation. For example, in a 1993 letter
from Ms. Monica Verros, R.N., C.O.H.N, of the IBP company, Ms. Verros
asked, "[a]re all applications of butterfly adhesive dressing(s) and
Steri-strip(s) considered medical treatment?" OSHA's answer was simply
"yes" (Ex. 70: 136).

OSHA agrees with the commenters who suggested that these devices be
considered first aid treatment. They are included in item D of the
first aid list. Steri strips and butterfly bandages are relatively
simple and require little or no training to apply, and thus are
appropriately considered first aid.

Two commenters also raised the issue of whether or not sutures or
stitches should be considered first aid (Exs. 15: 229, 348). The
National Pest Control Association (NPCA) stated:

NPCA believes cuts requiring five or less external stitches
should also be categorized as first aid as well unless the employee
has to go back to the medical provider because of the cut or there
are more than five external stitches. Some of the examples the
agency has included in its list of first aid, such as drilling of a
nail to relieve pressure for subungual hematoma and removal of
splinters or foreign material from areas other than eyes by
irrigation, tweezers, cotton, swabs or other simple means, seems to
be comparable to cuts requiring a minimal amount of stitches.
Therefore, we believe it should be added to the list (Ex. 15: 229,
p. 4).

The Dupont Company suggested: "Expand the 'suture' category to say
that any device used for closure for therapeutic reasons is an
automatic MTC (medical treatment case). Leeway should be given for when
a care provider gives 'unnecessary' treatment, for example, sutures for
cosmetic reasons instead of for therapeutic closure, where the doctor
provides the documentation" (Ex. 15: 348).

OSHA believes that including sutures or stitches in the first aid
list would not be appropriate. Performing these procedures requires
substantial medical training, and they are used only for more serious
wounds and are generally considered to go beyond first aid. OSHA has
also decided not to provide exclusions for first aid items based on
their purpose or intent. If the medical professional decides stitches
or sutures are necessary and proper for the given injury, they are
medical treatment.

Because OSHA has decided not to include a list of medical
treatments in the final rule, there is no need to articulate that the
use of other wound closing devices, such as surgical staples, tapes,
glues or other means are medical treatment. Because they are not
included on the first aid list, they are by definition medical
treatment.

Item 8 listed in the proposed definition of first aid was "[u]se
of any hot/cold therapy (e.g. compresses, soaking, whirlpools, non
prescription skin creams/lotions for local relief, etc.) except for
musculoskeletal disorders" (61 FR 4059). The Recordkeeping Guidelines
defined heat therapy, hot or cold therapy compresses or soaking
therapy, or whirlpool bath therapy on a second or subsequent visit to
be medical treatment (Ex. 2, p. 43). OSHA has restated this guidance in
numerous letters of interpretation, most of them related to the issue
of the recording of musculoskeletal disorders (MSDs).

A number of commenters recommended that hot or cold therapy be
defined as first aid regardless of the number of times it is
administered or the type of condition for which it is used (see, e.g.,
Exs. 15: 39, 45, 95, 109, 156, 163, 199, 201, 218, 246, 308, 347, 348,
359, 386, 414, 430, 443). Several of the comments cited consistency as
an issue (see, e.g., Exs. 15: 39, 109, 347, 348, 430). For example, the
Dupont Company stated that "Item 8 on the 'First Aid Treatment' list
considers the same treatment as either first aid or medical treatment
depending on the condition for which it is applied. The treatment is
used for reduction of swelling and discomfort. The condition for which
it is used should not matter. * * * Exclude the 'except for
musculoskeletal disorders * * *' clause from item 8 (Ex. 15: 348, p.
9).

Another issue raised was that hot and cold treatments do not
require special training (Ex. 15: 414). For example, Raytheon
Constructors stated "[w]e believe the following treatments should be
added: Soaking, whirlpool and hot/cold therapy with no limit on the
number of times. Many physicians choose this conservative treatment,
plus, any first aid trained person and/or the injured person can do
this" (Ex. 15: 414). Other commenters stated that serious
musculoskeletal disorders would be captured more consistently by other
recording criteria (see, e.g., Exs. 15: 199, 347). The Ford Motor
Company stated:

We have a major disagreement with the proposed rule that the use
of any hot or cold therapy is first aid, except for musculoskeletal
disorders. The use of hot or cold therapy should always be
considered first aid. If an individual has a significant or serious
musculoskeletal disorder, it would require prescription medicine,
restriction of work or motion, transfer to another job, a day away
from work, or medical treatment. Considering hot or cold therapy to
always be first aid simplifies the system, reduces confusion, and
does not discourage practitioners from using hot or cold therapy for
minor or insignificant musculoskeletal disorders. If all
musculoskeletal disorders which include two or more applications of
hot or cold therapy as directed by a health care provider are
recordable, the data on musculoskeletal disorders will be absolutely
useless (Ex. 15: 347).

Several commenters believed that multiple hot or cold treatments
should be considered medical treatment (see, e.g., Exs. 15: 371, 418).
The AFL-CIO disagreed with OSHA's proposal; it recommended that
multiple treatments of all types be considered medical treatment, based
on the belief that valuable information about serious work-related
injuries would otherwise be lost. The AFL-CIO said:

The proposed change in definition would seem to exclude cases
where there are continued instances of the listed first aid
treatments from the recordkeeping requirements. * * * The AFL-CIO
believes that first aid should be limited to one time treatments as
is the current practice, so that serious conditions which require
multiple treatments are recorded on the log. We strongly urge OSHA
to maintain the definition of first aid in the current recordkeeping
guidelines and to use the listed conditions as examples of first aid
(15: 418).

The Tosco Corporation proposed an alternative, recommending that hot/
cold treatments for musculoskeletal disorders be considered first aid
for the first four treatments (Ex. 15: 246).

In the final rule, OSHA has included hot and cold treatment as
first aid treatment, regardless of the number of times it is applied,
where it is applied, or the injury or illness to which it is applied.
The Agency has decided that hot or cold therapy must be defined as
either first aid or medical treatment regardless of the condition being
treated, a decision that departs from the proposal. It is OSHA's
judgment that hot and cold treatment is simple to apply, does not
require special training, and is rarely used as the only treatment for
any significant injury or illness. If the worker has sustained a
significant injury or illness, the case almost always involves some
other form of medical treatment (such as prescription drugs, physical
therapy, or chiropractic treatment); restricted work; or days away from
work. Therefore, there is no need to consider hot and cold therapy to
be medical treatment, in and of itself. Considering hot and cold
therapy to be first aid also clarifies and simplifies the rule, because
it means that employers will not need to consider whether to record
when an employee uses hot or cold therapy without the direction or
guidance of a physician or other licensed health care professional.

Item 9 listed in the NPRM definition of first aid was "[u]se of
any totally non-rigid, non-immobilizing means of support (e.g. elastic
bandages)." The proposal reflected OSHA's guidance to employers under
past interpretations. The Recordkeeping Guidelines defined first aid
treatment as "use of elastic bandage(s) during first visit to medical
personnel" (Ex. 2, p. 43). The Guidelines do not provide specific
guidance on the use of other types of orthopedic devices such as
splints, casts, or braces. In response to requests from the public to
clarify the issue of which devices are medical treatment and which are
first aid treatment, OSHA issued several letters of interpretation
stating that the use of wraps or non-constraining devices such as
wristlets, tennis elbow bands or elastic bandages are first aid
treatment, regardless of how long or how often they are used. The use
of casts, splints, or orthopedic devices designed to immobilize a body
part to permit it to rest and recover is considered medical treatment.
Generally, orthopedic devices used for immobilization are made rigid,
in whole or in part, through the use of stays or non-bending supports
(see, e.g., Exs. 70: 40, 158).

OSHA received several comments recommending that it provide
additional clarification of this issue (see, e.g., Exs. 15: 176, 290).
Several commenters suggested that OSHA include wrist splints as first
aid, on the grounds that wrist splints are used as a prophylactic
treatment (see, e.g., Exs. 15: 332, 349, 386, 387). Other commenters
recommended that finger splints be considered first aid (see, e.g.,
Exs. 15: 201, 349, 386). The Caterpillar Company suggested that OSHA
"[e]xpand item 9 to include rigid finger splints, which are used only
to prevent further injury or to maintain the cleanliness of finger
lacerations and other minor wounds, rather than as part of the required
medical treatment. Only splints that are used to provide rigidity as
part of the required medical treatment should trigger recordability"
(Ex. 15: 201).

Several comments centered on the issue of immobilization for
injuries while the worker is being transported to a medical care
facility (see, e.g., Exs. 15: 290, 347, 434). The Ford Motor Company
remarked, "[t]he first aid list should be expanded to include the use
of any partially or totally rigid immobilizing means of support when
used solely for the purpose of immobilization during initial transport
for medical evaluation. For example, the use of a back board, stiff
neck collar, or air splint" (Ex. 15: 347). The American Red Cross
added:

While Red Cross would agree that this is "first aid," it is
unclear whether OSHA intends for use of rigid support to be
considered "medical treatment." In most traditional first aid
classes, including those taught by Red Cross, students are taught
that if, for example, a victim has broken a bone, any rigid means of
support that would immobilize the limb until further medical care
can be obtained should be utilized. Examples of rigid support
include newspapers, magazines, sticks, boards, splints, etc.,
anything that is available to prevent further injury. This action
may be performed by anyone who has been trained in first aid, and
Red Cross does not believe that "rigidity" is the appropriate
qualification to consider this action "medical treatment" (15:
290).

The General Electric Corporation (GE) recommended that OSHA rely,
not on the design of the device but on whether or not the device
resulted in restricted activity. GE recommended "the following
additions to the list: Use of rigid or non-rigid immobilization
devices, if they don't result in restricted activity, e.g. wrist
braces, finger splints, immobilization for transport" (Ex. 15: 349).

OSHA has included two items related to orthopedic devices in the
final definition of first aid. Item F includes "[u]sing any non-rigid
means of support, such as elastic bandages, wraps, non-rigid back
belts, etc. (devices with rigid stays or other systems designed to
immobilize parts of the body are considered medical treatment for
recordkeeping purposes)." OSHA has included more examples of the
devices (wraps and non-rigid back belts) to help make the definition
clearer. However, OSHA believes that the use of orthopedic devices such
as splints or casts should be considered medical treatment and not
first aid. They are typically prescribed by licensed health care
professionals for long term use, are typically used for serious
injuries and illnesses, and are beyond the everyday definition of first
aid. OSHA believes that it would be inappropriate to rely on
"restricted activity," as recommended by GE, because there may be
situations where orthopedic devices are prescribed, the worker is not
placed on restrictions, but an injury or illness warranting recording has
occurred.

However, OSHA agrees with those commenters who stated that the use
of these devices during an emergency to stabilize an accident victim
during transport to a medical facility is not medical treatment. In
this specific situation, a splint or other device is used as temporary
first aid treatment, may be applied by non-licensed personnel using
common materials at hand, and often does not reflect the severity of
the injury. OSHA has included this item as G on the first aid list:
"[u]sing temporary immobilization devices while transporting an
accident victim (e.g. splints, slings, neck collars, etc.)"

Item 10 listed in the proposed definition of first aid was
"drilling of a nail to relieve pressure for subungual hematoma." A
subungual hematoma is an accumulation of blood underneath a finger or
toenail that is normally caused by a sharp blow to the nail. When
pressure builds beneath the nail, pain results. The normal course of
treatment for this injury is to drill a small hole through the nail to
relieve the pressure. In the past, OSHA considered such treatment to be
medical treatment and not first aid. For example, a 1993 letter from
IBP, Inc. asked whether "[d]rilling a hole through a fingernail to
relieve pressure (subungual hematoma) is considered medical
treatment?" OSHA's answer was "Yes, the draining of any fluids or
blood is to be considered medical treatment" (Ex. 70: 136).

OSHA received very few comments on this first aid item. Linda
Ballas & Associates stated "The drilling of a nail to relieve pressure
for subungual hematoma should be included as medical treatment and not
first aid" (Ex. 15: 31, p. 5). The American Textile Manufacturers
Institute recommended that OSHA change the item to: "Simple relieving
of the pressure of a subungual hematoma. The use of the word drilling
is too restrictive. There are a number of simple procedures to relieve
pressure that are considered first aid" (Ex. 15:156). OSHA also
received a similar comment from Oxychem Corporation stating that
lancing a blister should be considered first aid (Ex. 15: 386).

OSHA has decided to retain this item on the first aid list and to
add the lancing of blisters as well. These are both one time treatments
provided to relieve minor soreness caused by the pressure beneath the
nail or in the blister. These are relatively minor procedures that are
often performed by licensed personnel but may also be performed by the
injured worker. More serious injuries of this type will continue to be
captured if they meet one or more of the other recording criteria. OSHA
has specifically mentioned finger nails and toenails to provide
clarity. These treatments are now included as item H on the first aid
list.

Item 11 listed in the proposed definition of first aid was "Use of
eye patches." The Recordkeeping Guidelines did not provide specific
guidance about eye patches. However, in a 1992 letter, OSHA provided an
interpretation that the use of eye patches was first aid treatment; in
that letter, ELB Inc. asked OSHA to "[e]xplain if pressure patches on
eyes are recordable or if a patch over an eye to prevent light from
entering is recordable? Is the use of an eye patch recordable?" OSHA
answered " The use of a normal eye patch is considered to be first
aid. However, if the employee is unable to perform all of his/her
normal job duties because of the patch, the case should be recorded
based on restricted work activity. The use of a pressure eye patch is
medical treatment" (Ex. 70: 161) .

OSHA received only one comment specific to this item. The National
Institute for Occupational Safety and Health (NIOSH) stated that the
initial use of an eye patch would generally require medical evaluation
and should not be considered first aid (Ex. 15: 407). In the final
rule, OSHA has included the use of eye patches as first aid in item I
of the first aid list. Eye patches can be purchased without a
prescription, and are used for both serious and non-serious injuries
and illnesses. OSHA believes that the more serious injuries to the eyes
will that NIOSH refers to require medical treatment, such as
prescription drugs or removal of foreign material by means other than
irrigation or a cotton swab, and will thus be recordable.

Item 12 listed in the proposed definition of first aid was
"removal of foreign bodies not embedded in the eye if only irrigation
or removal with a cotton swab is required." The effect of including
this item in the list of first aid treatments would be to make any case
involving a foreign body embedded in the eye a recordable injury.

The Recordkeeping Guidelines listed "removal of foreign bodies
embedded in the eye" as medical treatment and "removal of foreign
bodies not embedded in eye if only irrigation is required" as first
aid (Ex. 2, p. 43). In subsequent letters of interpretation, the use of
a cotton swab to remove a foreign body from the eye was interpreted to
be first aid; injuries requiring any removal method other than
irrigation or a cotton swab made the case recordable (Ex. 70: 92).

OSHA received few comments on this first aid item. NIOSH stated
that any case involving a foreign body in the eye should be recorded,
because "even though removal of a foreign body from the eye may be a
first aid procedure, the presence of a work-related foreign body in the
eye should be recordable. These procedures should not be considered
first aid" (Ex. 15: 407). The Ford Motor Company asked OSHA to clarify
that a foreign body "embedded in or adhered to" the eye and removed
by the methods proposed would be considered first aid. Ford added that
"[t]he use of a prescription medication to anesthetize the eye for a
diagnostic procedure, an assessment procedure, or flushing to remove a
loose foreign body should not be considered medical treatment" (Ex.
15: 347). Countrymark Cooperative, Inc. asked that the definition of
this item be expanded to include other means of removal, stating: "We
suggest wording such as * * * Removal of foreign bodies not embedded in
the eye if only irrigation or simple removal techniques are required,
or comparable" (Ex. 15: 9).

In the final rule, OSHA has included as item J "Removing foreign
bodies from the eye using only irrigation or a cotton swab." OSHA
believes that it is often difficult for the health care professional to
determine if the object is embedded or adhered to the eye, and has not
included this suggested language in the final rule. In all probability,
if the object is embedded or adhered, it will not be removed simply
with irrigation or a cotton swab, and the case will be recorded because
it will require additional treatment.

OSHA believes that it is appropriate to exclude those cases from
the Log that involve a foreign body in the eye of a worker that can be
removed from the eye merely by rinsing it with water (irrigation) or
touching it with a cotton swab. These cases represent minor injuries
that do not rise to the level requiring recording. More significant eye
injuries will be captured by the records because they involve medical
treatment, result in work restrictions, or cause days away from work.

Item 13, the last item listed in the proposed definition of first
aid, was "Removal of splinters or foreign material from areas other
than the eyes by irrigation, tweezers, cotton swabs or other simple
means." The Recordkeeping Guidelines distinguished between foreign
body removal cases on the basis of the complexity of the removal
technique used. According to the Guidelines, the "removal of foreign
bodies from a wound if the procedure is complicated because of depth
of embedment, size or location" was medical treatment, while "removal
of foreign bodies from wound, if procedure is uncomplicated, and is,
for example, by tweezers or other simple technique" was first aid
(Ex. 2, p. 43).

OSHA received one comment specific to this proposed first aid item.
The Muscatine Iowa Chamber of Commerce Safety Committee stated "The
list appears to be very inclusive of what items are currently
understood as first aid treatments. Our only concern is the ambiguous
ending of Number 13. "* * * or other simple means." This should be
further defined. Change number 13 to read: "Removal of splinters or
foreign material from areas other than the eyes by irrigation,
tweezers, cotton swabs or by excision not to exceed the depth of the
outer layer of skin" (Ex. 15: 87).

In the final rule, OSHA has decided to retain item 13 essentially
as proposed, and this first aid treatment appears as item K on the
first aid list. The inclusion of the phrase "other simple means" will
provide some flexibility and permit simple means other than those
listed to be considered first aid. Cases involving more complicated
removal procedures will be captured on the Log because they will
require medical treatment such as prescription drugs or stitches or
will involve restricted work or days away from work. OSHA believes that
cases involving the excision of the outer layer of skin are not
appropriately considered first aid, as suggested by the Muscatine Iowa
Chamber of Commerce; excision of tissue requires training and the use
of surgical instruments.

Additions to the First Aid List Suggested by Commenters

In addition to comments about the first aid items OSHA proposed to
consider first aid, a number of commenters asked for additional
clarifications or recommended additions to the first aid list. The
items suggested included exercise, chiropractic treatment, massage,
debridement, poison ivy, bee stings, heat disorders, and burns.

Exercise: Several commenters requested adding exercise, performed
either at home or at work, to the list (see, e.g., Exs. 15: 201, 308,
349, 396). For example, Caterpillar suggested that OSHA "[a]dd a
listing for range of motion exercises and minor physical therapy
performed at home" (Ex. 15: 201). These comments described exercises
that amount to self-administered physical therapy, and are normally
recommended by a health care professional who trains the worker in the
proper frequency, duration and intensity of the exercise. Physical
therapy treatments are normally provided over an extended time as
therapy for a serious injury or illness, and OSHA believes that such
treatments are beyond first aid and that cases requiring them involve
medical treatment.

Chiropractic treatment: A few commenters believe that chiropractic
treatment should be treated as first aid (see, e.g., Exs. 15: 154, 299,
396). For example, the Sandoz Corporation stated "[i]t would simplify
our record keeping if there were better definition of the use of
chiropractors. Is one visit counted or do you have to have multiple
visits" (Ex. 15: 299). OSHA does not distinguish, for recordkeeping
purposes, between first aid and medical treatment cases on the basis of
number of treatments administered. OSHA also does not distinguish
between various kinds of health care professionals, assuming they are
operating within their scope of practice. If a chiropractor provides
observation, counseling, diagnostic procedures, or first aid procedures
for a work-related injury or illness, the case would not be recordable.
On the other hand, if a chiropractor provides medical treatment or
prescribes work restrictions, the case would be recordable.

Massage therapy: The Union Carbide company recommended the addition
of massages and prescribed physical therapy to the first aid list (Ex.
15: 396). OSHA believes that massages are appropriately considered
first aid and has included them as item M in the final rule's first aid
list. However, physical therapy or chiropractic manipulation are
treatments used for more serious injuries, and are provided by licensed
personnel with advanced training and therefore rise to the level of
medical treatment beyond first aid.

Debridement: Several commenters recommended that OSHA include
debridement as a first aid treatment (see, e.g., Exs. 15: 201, 332,
349, 387). Debridement is the surgical excision, or cutting away, of
dead or contaminated tissue from a wound. The Recordkeeping Guidelines
listed "cutting away dead skin (surgical debridement)" as an example
of medical treatment (Ex. 2, p. 43). The Caterpillar Company
recommended that OSHA "[a]dd to the [first aid] listing provisions for
the minor removal of nonviable tissue as first aid treatment" (Ex. 15:
201).

OSHA has decided not to include debridement as a first aid
treatment. This procedure must be performed by a highly trained
professional using surgical instruments. Debridement is also usually
performed in conjunction with other forms of medical treatment, such as
sutures, prescription drugs, etc.

Intravenous (IV) administration of glucose and saline: Two
commenters (Exs. 15: 154, 395) argued that the intravenous
administration of saline (salt) and glucose (sugar) should be
considered first aid. In former letters of interpretation, OSHA
considered these treatments first aid in injury cases (see, e.g., Exs.
15: 154, 395). In the final rule, however, OSHA has decided not to
include the IV administration of fluids on the first aid list because
these treatments are used for serious medical events, such as post-shock,
dehydration or heat stroke. The administration of IVs is an
advanced procedure that can only be administered by a person with
advanced medical training, and is usually performed under the
supervision of a physician.

The Union Carbide Corporation (Ex. 15: 396) also recommended three
additions to the first aid list: UV treatment of blisters, rashes and
dermatitis; acupuncture, when administered by a licensed health care
professional; and electronic stimulation. After careful consideration,
OSHA has decided not to include these treatments as first aid. Each of
these treatments must be provided by a person with specialized
training, and is usually administered only after recommendation by a
physician or other licensed health care professional.

Several commenters asked that treatments for two specific types of
disorders be added to the list: heat disorders and burns. OSHA has not
added these types of conditions to the first aid list because the list
includes treatments rather than conditions. However, OSHA has added
fluids given by mouth for the relief of heat disorders to the list, in
response to comments received.

Two commenters asked about the recording of heat disorders and how
they relate to the definition of first aid and medical treatment. Union
Carbide recommended an addition to the first aid list to state "fluids
taken internally for heat stress" (Ex. 15: 396). The Arizona Public
Service Company remarked: "Recordability of heat stress and heat rash
should be addressed based on classification of treatment (first aid vs.
medical)" (Ex. 15: 247). Under OSHA's former recordkeeping system,
heat stress was recordable as an occupational illness because it
results from non-instantaneous exposures that occur over time and all
occupational illnesses, including minor ones, were considered recordable.

In the final rule, OSHA agrees with Union Carbide that drinking
fluids for the relief of heat disorders is a first aid rather than
medical treatment and item N on the final first aid list is "drinking
fluids for relief of heat stress." However, as discussed above, OSHA
believes that more extensive treatment, including the administration of
fluids by intravenous injections (IV), are medical treatment, and more
serious cases of heat disorders involving them must be entered into the
records. In addition, any diagnosis by a physician or other licensed
health care professional of heat syncope (fainting due to heat) is
recordable under paragraph 1904.7(b)(6), Loss of Consciousness.

Burns: Many commenters recommended that OSHA include the treatment
of burns on the first aid list (see, e.g., Exs. 45, 170, 260, 262, 265,
288, 301, 401, 414, 443). Teepak Inc. stated "[s]econd degree burns
treated by first aid measures only, with no infection or complication
or prescription medication, should be considered first aid" (Ex. 15:
45). The Georgia Power Company argued that "[t]reatment of all first
degree burns should be added to the list of first aid treatments
because they are minor injuries that are exempt from the requirements
of the Act. Omission of first degree and second degree burns receiving
only first aid treatment from this list is inconsistent with the
recording criteria listed for burns of the skin in [proposed] Appendix
B" (Ex. 15: 260). The Chemical Manufacturers Association recommended
that OSHA add "[b]urns that require only one-time treatment.
Subsequent observations and changing of bandages does not constitute
medical treatment" (Ex. 15: 301).

The former Recordkeeping Guidelines listed the treatment of first
degree burns as an example of first aid treatment and did not consider
such treatment to be recordable (Ex. 2, p. 43). In the final rule, OSHA
has decided not to include burn treatments on the first aid list. If
first, second, or third degree burns result in days away from work,
restricted work activity, or medical treatment beyond first aid, such
as prescription drugs or complex removal of foreign material from the
wound, they will rise to the level that requires recording.

Taking this approach means that burns will be treated just as other
types of injury are, i.e., minor burn injuries will not be recordable,
while more serious burns will be recorded because they will involve
medical treatment. For example, a small second degree burn to the
forearm that is treated with nothing more than a bandage is not
recordable. A larger or more severe second degree burn that is treated
with prescription creams or antibiotics, or results in restricted work,
job transfer, or days away from work is recordable. The vast majority
of first degree burns and minor second degree burns will not be
recorded because they will not meet the recording criteria, including
medical treatment. However, more serious first and second degree burns
that receive medical treatment will be recorded, and third degree burns
should always be recorded because they require medical treatment.

Miscellaneous First Aid and Medical Treatment Issues

The American Association of Occupational Health Nurses (AAOHN) was
concerned that the public might interpret the fact that treatments were
listed as first aid to mean that they did not have to be administered,
in some cases, by a health care professional:

OSHA must clarify that categorizing certain actions as first aid
does not necessarily imply that these actions can be delegated to a
non-health care professional. While a list of actions considered
first aid treatment will offer guidance for employers in determining
recordability of incidents, situations exist that will require the
professional judgment of a health care professional. One example is
the administration of tetanus/diphtheria shots. While it is
appropriate to consider these treatments first aid for
recordability, injections pose issues that require the judgment and
expertise of a health care professional. One potential hazard of
this treatment is the risk of side effects. The ability to identify
the reaction and take appropriate measures should be handled by a
qualified health care professional (Ex. 15: 181).

OSHA agrees with the AAOHN that certain treatments and
interventions require the professional judgment of a health care
professional. The Agency believes that these matters are best left to
state agencies and licensing boards, and the final rule's definition of
health care professional (see Subpart G) makes this clear.

The State of New York expressed a concern about the possible
confusion some employers might experience between OSHA's requirements
and those of the state workers' compensation systems. The New York
Workers' Compensation Board stated:

The proposed rule contains a broad list of treatments which will
qualify as first aid, with less emphasis on the number of treatments
or the resulting amount of lost time from work. It is possible that
many of the items listed in the OSHA rule as first-aid treatments
which do not require reporting under the proposed OSHA standard
(i.e. use of splints, drilling a nail in a hematoma, use of
compresses and non-prescription medications), may still require
reporting under the WCL because in a particular case the treatment
qualifies as medical treatment or because it has caused lost time
from work beyond the working day. The only problem would be if
employers, in complying with proposed OSHA requirements, failed to
continue to comply with New York's recording and reporting
requirements (Ex. 15: 68).

OSHA's reporting requirements do not in any way interfere with or have
any impact on state workers compensation reporting requirements.
Employers are required to record certain injuries and illnesses under
the OSHA recordkeeping regulation and to observe certain other
requirements under workers' compensation law. The two laws have
separate functions: workers' compensation is designed to compensate
injured or ill workers, while the OSH Act is designed to prevent
injuries and illnesses and to create a body of information to improve
understanding of their causes. Thus, certain injuries and illnesses may
be reportable under state workers' compensation law but not under the
OSHA recordkeeping rule, and certain injuries and illnesses may be
reportable under the OSHA rule but not under one or more workers'
compensation statutes. OSHA notes that employers have been following
the requirements of both systems for years, and have generally not
experienced difficulty in doing so.

Several commenters remarked on the need for OSHA to update the
first aid list in the future (see, e.g., Exs. 234, 247, 384, 407). One
commenter remarked: "The suggested first aid list adds and clarifies
some treatments as first aid. There should be a mechanism for adding or
removing treatments to first aid and medical treatment lists as new
information becomes available" (Ex. 15: 234). The Akzo Nobel Company
suggested that "[w]ith the assistance of occupational physicians,
updates could be made quarterly and distributed via the Internet" (Ex.
15: 384). The National Institute for Occupational Safety and Health
(NIOSH) recommended "[t]he first aid list, however, should be included
as an appendix, rather than in the rule itself, in order to allow
revisions to be made more easily as medical practice evolves" (Ex. 15:
407).

In response, OSHA notes that the list is part of a definition that
sets mandatory recording and reporting requirements and is a part of
the regulation itself. Including the first aid list as a non-mandatory
appendix would provide additional flexibility for future updates, but
doing so would not meet the purposes for which the list is intended. The
list is mandatory, and making it non-mandatory would only introduce additional
confusion about what is or is not to be entered into the records. As a
result, the mechanism OSHA will use to update or modify the first aid
list will be to pursue a future rulemaking, if and when such a
rulemaking is needed. OSHA will continue to issue letters of
interpretation to help employers understand the requirements as they
apply to specific situations.

Paragraph 1904.7(b)(6) Loss of Consciousness

The final rule, like the former rule, requires the employer to
record any work-related injury or illness resulting in a loss of
consciousness. The recording of occupational injuries and illnesses
resulting in loss of consciousness is clearly required by Sections 8(c)
and 24 of the OSH Act. The new rule differs from the former rule only
in clearly applying the loss of consciousness criterion to illnesses as
well as injuries. Since the former rule required the recording of all
illnesses, illnesses involving loss of consciousness were recordable,
and thus OSHA expects that this clarification will not change recording
practices. Thus, any time a worker becomes unconscious as a result of a
workplace exposure to chemicals, heat, an oxygen deficient environment,
a blow to the head, or some other workplace hazard that causes loss of
consciousness, the employer must record the case.

Very few commenters addressed the issue of loss of consciousness.
Three commenters asked OSHA to make sure that these cases are not
recordable unless they are the result of a work-related injury or
illness (see, e.g., Exs. 15: 102, 159, 176). The American Frozen Food
Institute (AFFI) stated that "[l]oss of consciousness should not be
reported unless it is the clear result of a work related injury or
illness" (Ex. 15: 102). The Chemical Manufacturers Association added
"OSHA must clearly indicate in the final recordkeeping rule that loss
of consciousness must be induced by an occupational exposure. For
example, if someone faints at work due to pregnancy or has an epileptic
seizure, such loss of consciousness should not be recordable" (Ex. 15:
176).

OSHA agrees with these commenters that, in order to be a recordable
event, a loss of consciousness must be the result of a workplace event
or exposure. Loss of consciousness is no different, in this respect,
from any other injury or illness. The exceptions to the presumption of
work-relationship at § 1904.5(b)(2)(ii) allow the employer to
exclude cases that "involve signs or symptoms that surface at work but
result solely from a non-work-related event or exposure that occurs
outside the work environment." This exception allows the employer to
exclude cases where a loss of consciousness is due solely to a personal
health condition, such as epilepsy, diabetes, or narcolepsy.

The American Crystal Sugar Company (Ex. 15: 363) raised the issue
of phobias resulting in loss of consciousness:

I would also like to suggest exempting an employee's loss of
consciousness based on a fear-based phobia, i.e., fainting at the
sight of blood. Occasionally an OSHA regulation may require blood
tests, such as checking lead levels in blood. There are a few
employees that will lose consciousness at the sight of a needle.
These phobias are not limited to medical procedures, but may include
spiders, snakes, etc. In several of our factories, the occupational
health nurse will administer tetanus boosters as a service to our
employees. Employees that have a phobia about injections can (and
do) lose consciousness, which now makes what was intended as a
service an OSHA recordable accident.

The final rule does not contain an exception for loss of
consciousness associated with phobias or first aid treatment. OSHA
notes, however, that the exception at paragraph 1904.5(b)(2)(iii)
allows the employer to rebut the presumption of work relationship if
"the injury or illness results solely from voluntary participation in
a wellness program or in a medical, fitness, or recreational activity
such as blood donation, physical, flu shot, exercise class,
racquetball, or baseball." This exception would eliminate the
recording of fainting episodes involving voluntary vaccination
programs, blood donations and the like. However, episodes of fainting
from mandatory medical procedures such as blood tests mandated by OSHA
standards, mandatory physicals, and so on would be considered work-related
events, and would be recordable on the Log if they meet one or
more of the recording criteria. Similarly, a fainting episode involving
a phobia stemming from an event or exposure in the work environment
would be recordable.

The Union Carbide Corporation (Ex. 15: 396) asked OSHA to be more
precise about the definition of loss of consciousness, stating that
"[m]ost people generally understand this term without a definition,
but it can be open to interpretation. For example, is 'feeling woozy'
for a few seconds considered to be a loss of consciousness? Perhaps
OSHA should define the term to avoid any confusion." In this final
rule, OSHA has not included a separate definition for the term "loss
of consciousness." However, the language of paragraph 1904.7(b)(6) has
been carefully crafted to address two issues. First, the paragraph
refers to a worker becoming "unconscious," which means a complete
loss of consciousness and not a sense of disorientation, "feeling
woozy," or a other diminished level of awareness. Second, the final
rule makes it clear that loss of consciousness does not depend on the
amount of time the employee is unconscious. If the employee is rendered
unconscious for any length of time, no matter how brief, the case must
be recorded on the OSHA 300 Log.

Paragraph 1904.7(b)(7) Recording Significant Work-Related Injuries and
Illnesses Diagnosed by a Physician or Other Licensed Health Care
Professional

Paragraph 1904.7(b)(7) of this final rule requires the recording of
any significant work-related injury or illness diagnosed by a physician
or other licensed health care professional. Paragraph 1904.7(b)(7)
clarifies which significant, diagnosed work-related injuries and
illnesses OSHA requires the employer to record in those rare cases
where a significant work-related injury or illness has not triggered
recording under one or more of the general recording criteria, i.e, has
not resulted in death, loss of consciousness, medical treatment beyond
first aid, restricted work or job transfer, or days away from work.
Based on the Agency's prior recordkeeping experience, OSHA believes
that the great majority of significant occupational injuries and
illnesses will be captured by one or more of the other general
recording criteria in Section 1904.7. However, OSHA has found that
there is a limited class of significant work-related injuries and
illnesses that may not be captured under the other § 1904.7
criteria. Therefore, the final rule stipulates at paragraph
1904.7(b)(7) that any significant work-related occupational injury or
illness that is not captured by any of the general recording criteria
but is diagnosed by a physician or other licensed health care
professional be recorded in the employer's records.

Under the final rule, an injury or illness case is considered
significant if it is a work-related case involving occupational cancer
(e.g., mesothelioma), chronic irreversible disease (e.g., chronic
beryllium disease), a fractured or cracked bone (e.g., broken arm,
cracked rib), or a punctured eardrum. The employer must record such
cases within 7 days of receiving a diagnosis from a physician or other
licensed health care professional that an injury or illness of this
kind has occurred. As explained in the note to paragraph 1904.7(b)(7),
OSHA believes that the great majority of significant work-related
injuries and illnesses will be recorded because they meet one or more
of the other recording criteria listed in § 1904.7(a): death, days
away from work, restricted work or job transfer, medical treatment beyond
first aid, or loss of consciousness. However, there are some significant
injuries, such as a punctured eardrum or a fractured toe or rib, for
which neither medical treatment nor work restrictions may be administered
or recommended.

There are also a number of significant occupational diseases that
progress once the disease process begins or reaches a certain point,
such as byssinosis, silicosis, and some types of cancer, for which
medical treatment or work restrictions may not be recommended at the
time of diagnosis, although medical treatment and loss of work
certainly will occur at later stages. This provision of the final rule
is designed to capture this small group of significant work-related
cases. Although the employer is required to record these illnesses even
if they manifest themselves after the employee leaves employment
(assuming the illness meets the standards for work-relatedness that
apply to all recordable incidents), these cases are less likely to be
recorded once the employee has left employment. OSHA believes that
work-related cancer, chronic irreversible diseases, fractures of bones
or teeth and punctured eardrums are generally recognized as
constituting significant diagnoses and, if the condition is work-related,
are appropriately recorded at the time of initial diagnosis
even if, at that time, medical treatment or work restrictions are not
recommended.

As discussed in the Legal Authority section, above, OSHA has
modified the Agency's prior position so that, under the final rule,
minor occupational illnesses no longer are required to be recorded on
the Log. The requirement pertaining to the recording of all significant
diagnosed injuries and illnesses in this paragraph of the final rule,
on the other hand, will ensure that all significant (non-minor)
injuries and illnesses are in fact captured on the Log, as required by
the OSH Act. Requiring significant cases involving diagnosis to be
recorded will help to achieve several of the goals of this rulemaking.
First, adherence to this requirement will produce better data on
occupational injury and illness by providing for more complete
recording of significant occupational conditions. Second, this
requirement will produce more timely records because it provides for
the immediate recording of significant disorders on first diagnosis.
Many occupational illnesses manifest themselves through gradual onset
and worsening of the condition. In some cases, a worker could be
diagnosed with a significant illness, such as an irreversible
respiratory disorder, not be given medical treatment because no
effective treatment was available, not lose time from work because the
illness was not debilitating at the time, and not have his or her case
recorded on the Log because none of the recording criteria had been
met. If such a worker left employment or changed employers before one
of the other recording criteria had been met, this serious occupational
illness case would never be recorded. The requirements in paragraph
1904.7(b)(7) remedy this deficiency and will thus ensure the capture of
more complete and timely data on these injuries and illnesses.

The provisions of paragraph 1904.7(b)(7) are an outgrowth of
Appendix B of the proposed rule, which included provisions for the
recording of individual conditions, such as blood lead levels,
musculoskeletal disorders, and various respiratory ailments. As OSHA
explained in the preamble to the proposed rule (61 FR 4039-4042), the
proposed requirements were intended to ensure the recording of
significant non-fatal cases that did not meet the general criteria
(days away, restricted work, medical treatment, etc.).

Proposed Appendix B has not been included in the final rule, which
instead includes additional separate criteria for several of the
conditions proposed to be included in Appendix B; these criteria, which
cover tuberculosis cases, hearing loss cases, and so on, appear in the
final rule at § 1904.8 through § 1904.12. The requirements at
paragraph 1904.7(b)(7) of the final rule, which require the recording
of significant injuries and illnesses not meeting one or more of the
general recording criteria, will ensure the recording of the small
number of significant conditions that would have been covered by
proposed Appendix B and are not elsewhere addressed in the final rule.
Thus, OSHA believes that cases involving the conditions listed in
proposed Appendix B will be captured either by the requirements in this
significant diagnosed case section or by the other general recording
criteria.

In developing the text of paragraph 1904.7(b)(7) of the final rule,
OSHA reviewed the following questions as they related to proposed
Appendix B. Each of these questions, and the comments received, are
discussed in greater detail below: (1) Are additional recording
criteria beyond loss of consciousness, medical treatment, restricted
work, job transfer, days away, or death needed in the final rule?; (2)
if so, should these additional criteria address a finite list of
specific conditions or address a broader range of disorders?; (3) how
should the agency define "significant" injuries and illnesses?; and
(4) how should the final rule ensure the work-relatedness of these
cases?

Are Additional Recording Criteria Needed?

Many commenters viewed proposed Appendix B as an unnecessary
addition to the other general recording criteria and argued that OSHA
should use the general criteria listed in the OSH Act itself for most
if not all of the listed conditions (see, e.g., Exs. 15: 52, 146, 200,
203, 219, 260, 262, 265, 271, 272, 303, 313, 329, 348, 352, 353, 368,
401, 427). For example, the Atlantic Richfield Company (ARCO) stated
that:

[t]his broadening of the recordability criteria particularly as
detailed in [proposed] mandatory Appendix B dilutes the significant
data with marginal data and does not, in our view, fit with OSHA's
stated goals for improved Log accuracy and utility. ARCO believes
that for almost all of these specific exposures, the appropriate
data can be captured through the normal performance criteria of
whether the condition or exposure has caused a day away from work,
restriction on activity, or resulted in medical treatment. It is,
therefore, our opinion that Appendix B is unnecessary and
appropriate for deletion (Ex. 15: 329).

However, other commenters saw a need for and supported the
inclusion of additional recording criteria in the final rule (see,
e.g., Exs. 15: 201, 301, 304, 318). For example, the National
Federation of Independent Business (NFIB) agreed that "[t]here are
some conditions which are serious enough to be recorded, but could
escape the proposed recordkeeping criteria of medical treatment,
restricted or loss workdays or job transfer" (Ex. 15: 304).
Caterpillar agreed "[w]ith the basic concept proposed in Appendix B
that additional guidelines are needed to capture some injuries and
illnesses serious enough to be recorded, which may not be captured by
the basic recordkeeping criteria" (Ex. 15: 201).

OSHA agrees with those commenters who supported the inclusion in
the final rule of an additional mechanism to ensure the capture of
significant work-related injuries and illnesses that are diagnosed by a
physician or other licensed health care professional but do
not, at least at the time of diagnosis, meet the criteria of death,
days away from work, restricted work or job transfer, medical treatment
beyond first aid, or loss of consciousness. The recording of all non-minor
injuries and illnesses is consistent with the OSH Act (see the
Legal Authority section) and has been the intent of the recordkeeping
system for many years. The primary goal of the requirement at paragraph
1904.7(b)(7) is to produce more accurate and complete data on non-minor
work-related injuries and illnesses. Because the number of significant
work-related injuries and illnesses may not be captured by one or more
of the other general recording criteria, OSHA finds that this
additional criterion is needed. However, OSHA believes that most cases
will be captured by the general recording criteria.

Should Additional Criteria Address a Finite List of Specific Conditions
or Address a Broader Range of Disorders?

Proposed Appendix B was composed of a finite list of disorders and
their associated recording criteria. A number of commenters were
concerned that an inclusive list would overlook other conditions that
did not meet the general recording criteria and were not included in
proposed Appendix B. For example, OxyChem wrote:

[f]or example, aniline is a substance having specific effects
from occupational exposure, but it is not listed in Appendix B. How
will occupational illness cases related to aniline be treated? Under
OSHA's proposal, employers will apply the general recordability
criteria to make a decision, and the case will very likely not be
recorded unless it involves medical treatment, loss of
consciousness, etc. (Ex. 15: 386)

This issue was also raised by the International Chemical Workers,
who wrote that "[a]ppendix B limits the types of illnesses which are
recordable. It needs to be textually and visually clear that this list
is not an all inclusive list of recordable illnesses " (Ex. 15: 415).
Additionally, the American Industrial Hygiene Association had the
following thoughts on this subject:

[a]n addition should be made to the end of Appendix B to clarify
and expand on the recording of new or emerging occupational
illnesses as introduced by OSHA in Appendix B, second paragraph at
the end of page 4063: "Conditions not included in this Appendix
that otherwise meet the criteria in the § 1904.4.(c) must be
recorded." Medical diagnoses, including laboratory and diagnostic
tests should be the principal criteria for recording occupational
illnesses.

The above quotation "Conditions not included in this Appendix *
* * must be recorded" should be reworded to include the statement
"including symptomology with a clear workplace link" (Ex. 15:
153).

OSHA generally agrees with these points. Limiting the recording of
non-minor occupational injuries and illnesses to a finite list runs
counter to the goal of this rule, which is to capture comprehensive
data on all non-minor work-related injuries and illnesses, and thus
including such a list would not meet the Agency's statutory mandate to
collect such data. OSHA believes there will be very few injuries and
illnesses that are not captured by the general recording criteria. For
example, non-minor acute illnesses, such as the skin disorders
potentially associated with aniline exposure, will be captured by the
other criteria, particularly medical treatment beyond first aid,
restricted work or job transfer, or days away from work. However, to
address the gap in case capture presented by significant injury and
illness cases that escape the general recording criteria, OSHA is
requiring employers to record cases of chronic, irreversible disease
under the § 1904.7(b)(7) criterion. This means that if long-term
workplace exposure to aniline results in a chronic, irreversible liver
or kidney disease, the case would be recordable at the time of
diagnosis, even if no medical treatment is administered at that time
and no time is lost from work. The regulatory text of paragraph
1904.7(b)(7) limits the types of conditions that are recordable,
however, to significant diagnosed injury and illness cases, which are
defined as cancer, chronic irreversible diseases, fractured or cracked
bones, and punctured eardrums.

How Should the Agency Define "Significant" Injury or Illness?

Although there was considerable support in the record for the final
rule to include a list of conditions that might not be captured under
the general recordkeeping criteria, there was far less agreement among
commenters on the specific conditions that should be listed. Many
commenters agreed with Amoco, which testified that "[t]he criteria
currently listed in the proposed rule would require recording of signs,
symptoms and laboratory abnormalities; situations which are not
disabling, serious, or significant" (Ex. 22). Waste Management, Inc.,
commented that "[t]he definition of an illness [in the proposal] or
injury refers to an adverse change in the individual. This is
interpreted to mean a change which is permanent or a change which is
clinically demonstrable to be adverse to the individual as a result of
occupational exposure in the workplace. Some of the guidance provided
in Appendix B does not meet these criteria" (Ex. 15: 389). The
Chemical Manufacturers Association suggested that only those conditions
"[w]hose seriousness is approximately equal to that of conditions
captured by traditional criteria" be included in Appendix B (Ex. 15:
301), and the Dupont Company proposed that the conditions listed in
Appendix B "[i]nclude only situations that cause a permanent change to
the body structure where medical treatment may not be given" (Ex. 15:
348). Dupont also stated that "[O]SHA should provide scientific
evidence that a change in a lab reading [laboratory tests results were
also included in proposed Appendix B] is the equivalent of a serious or
significant change to the body structure" (Ex. 15: 348). Other
commenters such as the Marathon Oil Company questioned whether OSHA had
the legal authority "[t]o require employers to record these non-serious
exposures. The OSHA proposed criteria do not represent serious,
significant or disabling injuries/illnesses as required by Section
24(a) of the Act" (Ex. 15: 308).

OSHA believes that the conditions that are required to be recorded
under § 1904.7(b)(7) of the final rule represent significant
occupational injuries and illnesses as described in the OSH Act. Some
clearly significant injuries or illnesses are not amenable to medical
treatment, at least at the time of initial diagnosis. For example, a
fractured rib, a broken toe, or a punctured eardrum are often, after
being diagnosed, left to heal on their own without medical treatment
and may not result in days away from work, but they are clearly
significant injuries. Similarly, an untreatable occupational cancer is
clearly a significant injury or illness. The second set of conditions
identified in paragraph 1904.7(b)(7), chronic irreversible diseases,
are cases that would clearly become recordable at some point in the
future (unless the employee leaves employment before medical treatment
is provided), when the employee's condition worsens to a point where
medical treatment, time away from work, or restricted work are needed.
By providing for recording at the time of diagnosis, paragraph
1904.7(b)(7) of the final rule makes the significant, work-related
condition recordable on discovery, a method that ensures the collection
of timely data. This approach will result in better injury and illness
data and also is likely to be more straightforward for employers to
comply with, since there is no further need to track the case to
determine whether, and at what point, it becomes recordable.

The core of the recording requirement codified at § 1904.7(b)(7)
is the employer's determination that a "significant" injury or
illness has been diagnosed. The Agency's former Recordkeeping
Guidelines addressed this issue in interpretations about "non minor"
injuries that did not meet the general recording criteria of death,
days away, restricted work, transfer to another job, medical treatment
or loss of consciousness. The Guidelines stated (Ex. 2, p. 42) that:

The distinction between medical treatment and first aid depends
not only on the treatment provided, but also on the severity of the
injury being treated. First aid is: (1) Limited to one-time
treatment and subsequent observation; and (2) involves treatment of
only minor injuries, not emergency treatment of serious injuries.
Injuries are not minor if:

(a) They must be treated only by a physician or licensed medical
personnel;

(c) They result in damage to the physical structure of a
nonsuperficial nature (e.g., fractures); or

(d) They involve complications requiring followup medical
treatment.

Many commenters on the proposal simply stated that the system must
include all serious, significant or disabling injuries, and exclude
cases that did not rise to that level (see, e.g., Exs. 25; 15: 55, 135,
144, 154, 158, 162, 165, 193, 201, 206, 207, 211, 212, 220, 228, 238,
240, 243, 252, 253, 257, 258, 261, 264, 267, 272, 274, 276, 286, 293,
303, 305, 306, 309, 318, 320, 346, 354, 358, 365, 368, 375, 382, 383,
395, 397, 408, 412, 420, 421, 427, 434). The comments of the American
Petroleum Institute (API) reflect this view: "[A]PI is strongly
opposed to any provision which would require a case to be recorded
which is not serious or which is not likely to become serious. API
strongly disagrees that non-serious subjective signs, symptoms,
abnormal health test results, or evidence of exposure in and of
themselves should be recorded on the OSHA log -- unless the case
otherwise meets one of the traditional criteria (e.g., medical
treatment, et al.) or results in, or is expected to result in a serious
impairment" (Ex. 15: 375).

Many comments believed that the recordability of occupational
illnesses should rely on the diagnosis of a health care professional.
For example, the U.S. Small Business Administration recommended that
"[a] recordable incident under the [proposed] 'Specific Conditions'
should be subject to a health care provider's clinical diagnosis" (Ed.
15: 67); Fort Howard recommended that "[t]he Company disagrees with
the [proposed] Mandatory Appendix B concept particularly in light of
the statement in the Proposal that an employer can not rely solely on
the clinical diagnosis of an injury or illness by a physician. Fort
Howard recommends that an employer be allowed to specifically rely on
the conclusions of those trained in this field, namely physicians"
(Ex. 15: 194); and Country Mark Cooperative recommended that " [i]f an
illness is diagnosed by a medical provider as linked to the cause
agent, then it would be recorded as 'otherwise recordable' until such
time as other recordable criteria are met such as days unable to work"
(Ex. 15: 9). BASF commented that "[proposed] Appendix B should not
require the recording of merely signs, symptoms, or laboratory
abnormalities. Instead, it should also include objective findings or
observations on the part of health care providers regarding the
diagnosis of a serious illness or effect not otherwise subject to
recording requirements" (Ex. 15: 403).

Only a few commenters suggested methods for differentiating between
serious and non-serious cases, in the context of conditions that should
be listed in the final rule (see, e.g., Exs. 15: 135, 176, 193, 199,
258, 375, 396). The API suggested that, if OSHA identifies a need to
define "disabling, serious or significant" explicitly, the Agency
should consider the following criteria:

[a]ny other case which results in a serious impairment or
significant injury for which no effective treatment exists, or

involves a diagnosis of a condition which in time is expected to
result in a serious impairment (or death), e.g., certain asbestos-related diseases; or

Elsewhere in their comments, the API recommended criteria for
selecting which conditions would be listed in proposed Appendix B as
follows:

[t]he purpose of this appendix [proposed Appendix B] is to
provide for the mandatory recording of occupational injuries and
illnesses which are also serious or significant -- but which do not
immediately result in medical treatment, restricted work * * *

Such cases fall into three broad categories. They occur when the
injury or illness either

Results in a serious impairment (unable to perform any normal
life activity such as walking, eating, thinking, talking, breathing,
seeing, smelling, hearing, driving a car. Incontinence and impotence
would also be included)

Involves a diagnosis of a condition which in time is expected to
result in serious impairment (or death), e.g. certain asbestos
related diseases,

[a]s mentioned previously, Congress intended that the
statistical data compiled under this rule be limited to cases
involving disabling, serious, or significant injuries or illness.
Adapto, Inc. believes this phrase generally refers to a work-related
condition that results in a physical or mental impairment that
substantially limits a major life activity.

Union Carbide (Ex. 15: 396) urged that the following factors be
used for determining the conditions that should be included in the
final rule:

Serious illnesses caused by exposures which are chronic and
cumulative in nature

Serious illnesses with a long latency period between exposure
and recognition of the significant illness condition

Serious illnesses which are likely to result in significant
impairment

Serious illnesses without a known or widely recognized medical
treatment until advanced stages.

The Chemical Manufacturing Association (Ex. 15: 176) restated the
same factors articulated by Union Carbide and added another factor:
"[s]erious illnesses that are not treatable." The NYNEX Corporation
(Ex. 15: 199), the National Broiler Council (NBC), and the National
Turkey Federation (Ex. 15: 193), in identical comments, focused on the
idea of cases with an expectation of serious impairment or death,
stating:

[w]e do recognize, however, that there are some cases that do
not meet this criteria that do have the expectation of resulting in
serious impairment or even death. We are in agreement that cases of
this potential seriousness should be recorded when they are
diagnosed by a competent physician or medical professional as work-related.

The Macon Corporation (Ex. 15: 135) suggested using a material
impairment test, suggesting that "[w]e need to establish an effective
system for the collection of data on serious work related injuries and
illnesses which, at the time of recording, represent a material
impairment to the health or functional capacity [of the injured or ill
worker]." OSHA has not adopted the material impairment alternative in
the final rule because the term has specific meaning in the context of
OSHA rulemaking. Section 6(b)(5) of the Act, which sets forth the
criteria for promulgating standards dealing with toxic substances or
harmful physical agents, states that OSHA shall "set the standard which
most adequately assures, to the extent feasible, on the basis of the
best available evidence, that no employee will suffer material impairment
of health or functional capacity even if such employee has regular
exposure to the hazard dealt with by such standard for the period of his
working life (emphasis added)." OSHA believes that use of this term in
the recordkeeping rule could cause confusion among employers.

In the final rule, OSHA has adopted an approach similar to that
suggested by the American Petroleum Institute, i.e., focusing on two
types of injury and illness: those that may be essentially untreatable,
at least in the early stages and perhaps never (fractured and cracked
bones, certain types of occupational cancer, and punctured eardrums)
and those expected to progressively worsen and become serious over time
(chronic irreversible diseases). The final rule is also responsive to
the many commenters who urged OSHA to adopt a definition of severity
for this requirement that would include all serious and significant
injuries and illnesses, while excluding less serious cases. The
language of paragraph 1904.(b)(7) of the final rule also responds to
comments presented by commenters on the proposal who argued that
relying on test results or other measures as indicators of serious
occupational injury or illness was inappropriate. Instead, the final
rule relies exclusively on the diagnosis of a limited class of injuries
and illnesses by a physician or other licensed health care
professional.

Clarifying That Cases Captured by Paragraph 1904.7(b)(7) Must Be Work
Related

A number of commenters on the proposal expressed concern that
proposed Appendix B was not clear enough about the fact that conditions
must be work-related to be recordable on the OSHA forms. For example,
several commenters asked OSHA to make sure that recordable cases of
asthma are work-related (see, e.g., Exs. 15: 38, 78, 80, 83, 89, 105,
157, 163, 188, 197, 203, 239, 279, 281, 297, 299, 302, 337, 345, 378,
395, 414). The Jewel Coal and Coke Company (Ex. 15: 281) stated that
"[asthma, in nearly all cases, is genetic and, to be recordable, we
feel must be a direct result of something in the working OSHA
environment. To require anything else would cause the unnecessary
recording of cases of genetic asthma with no relationship to the
working environment and would serve no purpose other than to balloon
the statistics."

OSHA wishes to reiterate that any condition that is recordable on
the OSHA injury and illness recordkeeping forms must be work-related,
and § 1904.7(b)(7) includes the term "work-related" to make this
fact clear. In addition, because the employer will be dealing with a
physician or other licensed health care professional, he or she may
also be able to consult with the health care professional about the
work-relatedness of the particular case. If the employer determines,
based either on his or her own findings or those of the professional,
that the symptoms are merely arising at work, but are caused by some
non-work illness, then the case would not be recorded, under exception
(b)(2)(ii) to the work-relatedness presumption at § 1904.5(b)(2) of
the final rule. Similarly, if workplace events or exposures contributed
only insignificantly to the aggravation of a worker's preexisting
condition, the case need not be recorded under § 1904.5(a) and
§ 1904.5(b)(3) of the final rule.

The provisions of § 1904.7(b)(7) of the final rule thus meet the
objectives of (1) capturing significant injuries and illnesses that do
not meet the other general recording criteria of death, days away from
work, restricted work or job transfer, medical treatment beyond first
aid, or loss of consciousness; (2) excluding minor injuries and
illnesses; (3) addressing a limited range of disorders; and (4) making
it clear that these injuries and illnesses must be work-related before
they must be recorded.

Section 1904.8 of the final rule being published today deals with
the recording of a specific class of occupational injuries involving
punctures, cuts and lacerations caused by needles or other sharp
objects contaminated or reasonably anticipated to be contaminated with
blood or other potentially infectious materials that may lead to
bloodborne diseases, such as Acquired Immunodeficiency Syndrome (AIDs),
hepatitis B or hepatitis C. The final rule uses the terms
"contaminated," "other potentially infectious material," and
"occupational exposure" as these terms are defined in OSHA's
Bloodborne Pathogens standard (29 CFR 1910.1030). These injuries are of
special concern to healthcare workers because they use needles and
other sharp devices in the performance of their work duties and are
therefore at risk of bloodborne infections caused by exposures
involving contaminated needles and other sharps. Although healthcare
workers are at particular risk of bloodborne infection from these
injuries, other workers may also be at risk of contracting potentially
fatal bloodborne disease. For example, a worker in a hospital laundry
could be stuck by a contaminated needle left in a patient's bedding, or
a worker in a hazardous waste treatment facility could be
occupationally exposed to bloodborne pathogens if contaminated waste
from a medical facility was not treated before being sent to waste
treatment.

Section 1904.8(a) requires employers to record on the OSHA Log all
work-related needlestick and sharps injuries involving objects
contaminated (or reasonably anticipated to be contaminated) with
another person's blood or other potentially infectious material (OPIM).
The rule prohibits the employer from entering the name of the affected
employee on the Log to protect the individual's privacy; employees are
understandably sensitive about others knowing that they may have
contracted a bloodborne disease. For these cases, and other types of
privacy concern cases, the employer simply enters "privacy concern
case" in the space reserved for the employee's name. The employer then
keeps a separate, confidential list of privacy concern cases with the
case number from the Log and the employee's name; this list is used by
the employer to keep track of the injury or illness so that the Log can
later be updated, if necessary, and to ensure that the information will
be available if a government representative needs information about
injured or ill employees during a workplace inspection (see
§ 1904.40). The regulatory text of § 1904.8 refers recordkeepers
and others to § 1904.29(b)(6) through § 1904.29(b)(10) of the
rule for more information about how to record privacy concern cases of
all types, including those involving needlesticks and sharps injuries.
The implementation section of § 1904.8(b)(1) defines "other
potentially infectious material" as it is defined in OSHA's Bloodborne
Pathogens Standard (29 CFR § 1910.1030, paragraph (b)). Other
potentially infectious materials include (i) human bodily fluids, human
tissues and organs, and (ii) other materials infected with the HIV or
hepatitis B (HBV) virus such as laboratory cultures or tissues from
experimental animals. (For a complete list of OPIM, see paragraph (b)
of 29 CFR 1910.1030.)

Although the final rule requires the recording of all workplace cut
and puncture injuries resulting from an event involving contaminated
sharps, it does not require the recording of all cuts and punctures.
For example, a cut made by a knife or other sharp instrument that was
not contaminated by blood or OPIM would not generally be recordable,
and a laceration made by a dirty tin can or greasy tool would also
generally not be recordable, providing that the injury did not result
from a contaminated sharp and did not meet one of the general recording
criteria of medical treatment, restricted work, etc. Paragraph (b)(2)
of § 1904.8 contains provisions indicating which cuts and punctures
must be recorded because they involve contaminated sharps and which
must be recorded only if they meet the general recording criteria.

Paragraph (b)(3) of § 1904.8 contains requirements for updating
the OSHA 300 Log when a worker experiences a wound caused by a
contaminated needle or sharp and is later diagnosed as having a
bloodborne illness, such as AIDS, hepatitis B or hepatitis C. The final
rule requires the employer to update the classification of such a
privacy concern case on the OSHA 300 Log if the outcome of the case
changes, i.e., if it subsequently results in death, days away from
work, restricted work, or job transfer. The employer must also update
the case description on the Log to indicate the name of the bloodborne
illness and to change the classification of the case from an injury
(i.e., the needlestick) to an illness (i.e., the illness that resulted
from the needlestick). In no case may the employer enter the employee's
name on the Log itself, whether when initially recording the
needlestick or sharp injury or when subsequently updating the record.

The privacy concern provisions of the final rule make it possible,
for the first time, for the identity of the bloodborne illness caused
by the needlestick or sharps injury to be included on the Log. By
excluding the name of the injured or ill employee throughout the
recordkeeping process, employee privacy is assured. This approach will
allow OSHA to gather valuable data about the kinds of bloodborne
illnesses healthcare and other workers are contracting as a result of
these occupational injuries, and will provide the most accurate and
informative data possible, including the seroconversion status of the
affected worker, the name of the illness he or she contracted, and, on
the OSHA 301 Form for the original case, more detailed information
about how the injury occurred, the equipment and materials involved,
and so forth. Use of the privacy case concept thus meets the primary
objective of this rulemaking, providing the best data possible, while
simultaneously ensuring that an important public policy goal -- the
protection of privacy about medical matters -- is met. OSHA recognizes
that requiring employers to treat privacy cases differently from other
cases adds some complexity to the recordkeeping system and imposes a
burden on those employers whose employees experience such injuries and
illnesses, but believes that the gain in data quality and employee
privacy outweigh these disadvantages considerably.

The last paragraph (paragraph (c)) of § 1904.8 deals with the
recording of cases involving workplace contact with blood or other
potentially infectious materials that do not involve needlesticks or
sharps, such as splashes to the eye, mucous membranes, or non-intact
skin. The final recordkeeping rule does not require employers to record
these incidents unless they meet the final rule's general recording
criteria (i.e., death, medical treatment, loss of consciousness,
restricted work or motion, days away from work, diagnosis by an HCP) or
the employee subsequently develops an illness caused by bloodborne
pathogens. The final rule thus provides employers, for the first time,
with regulatory language delineating how they are to record injuries
caused by contaminated needles and other sharps, and how they are to
treat other exposure incidents (as defined in the Bloodborne Pathogens
standard) involving blood or OPIM. "Contaminated" is defined just as
it is in the Bloodborne Pathogens standard: "Contaminated means the
presence or the reasonably anticipated presence of blood or other
potentially infectious materials on an item or surface."

Before issuance of this final recordkeeping rule, the OSHA
compliance directive CPL 2-2.44C for the Bloodborne Pathogens standard,
"Enforcement Procedures for the Occupational Exposure to Bloodborne
Pathogens Standard, 29 CFR 1910.1030" provided recording guidance to
employers of occupationally exposed employees. The CPL 2-2.44C guidance
treated cuts, lacerations and exposure incidents identically,
classifying all of the events as injuries because they usually result
from instantaneous events or exposures. The employer was required to
record an incident when it met one of the following requirements:

1. The incident is a work-related injury that involves loss of
consciousness, transfer to another job, or restriction of work or
motion.

3. The incident results in a diagnosis of seroconversion. The
serological status of the employee shall not be recorded on the OSHA
200. If a case of seroconversion is known, it shall be recorded on
the OSHA 200 as an injury (e.g., "needlestick" rather than
"seroconversion") in the following manner:

a. If the date of the event or exposure is known, the original
injury shall be recorded with the date of the event or exposure in
column B.

b. If there are multiple events or exposures, the most recent
injury shall be recorded with the date that seroconversion is
determined in column B.

In 1999, OSHA updated CPL 2-2.44 and changed this language to
simply refer to the Part 1904 regulation, in anticipation of the
publication of this final recordkeeping rule.

The proposal

In the 1996 Federal Register notice, OSHA proposed recording
criteria for needlestick and sharps injuries that were the same as the
criteria being set forth in this final rule. The requirements in the
final rule have been stated in slightly different language from those
in the proposal to be consistent with the format of the remainder of
the rule. The only substantive difference between the approach taken in
the proposal and that in the final rule is the way that cases are
handled to protect the privacy of the injured or ill worker. Appendix B
of the proposed rule (61 FR 4065) included requirements to record the
following:

OSHA explained in its proposal that recording these incidents was
appropriate because these injuries are clearly non-minor, and recording
them would be consistent with the Agency's mandate to collect
information related to the death, illness, and injury of workers (61 FR
4041). OSHA then requested comment on whether it would be appropriate
to record small puncture wounds and lacerations that do not lead to disease,
and whether OSHA should require employers to record all "exposure incidents"
involving exposure to blood or OPIM, not just injuries involving contaminated
needles and sharps. The proposal also asked for comment about the
special privacy concerns potentially associated with bloodborne
pathogen injuries and illnesses, and asked the following questions:
"What data is useful to collect? Are there other criteria for the
recording of bloodborne infectious diseases which should be considered?
What experience do employers have in data collection systems for this
hazard?"

Some commenters suggested that only those cases that resulted in
either medical treatment or seroconversion should be recorded on the
Log (see, e.g., Exs. 15: 48, 100, 213, 310, 395, 416, 423), while
others advocated recording lacerations and puncture wounds only if they
met the rule's general recording criteria (see, e.g., Exs. 15: 52, 200,
203, 219, 260, 262, 265, 271, 313, 329, 348, 352, 353, 401). As Bell
Atlantic (Ex. 15: 128) commented, "[s]erious lacerations and puncture
wounds involving contact with bloodborne pathogens should be reported.
But the mechanism driving such reporting is the severity of the wound
and NOT the presence of bloodborne pathogens. Even with the absence of
bloodborne pathogens, such serious injuries would be recorded."

The American Hospital Association and the Georgia Hospital
Association expressed concern that bloodborne pathogen disease criteria
require "the recording of all instances of certain conditions that
meet specific criteria, whether or not they meet OSHA's established
criteria for recordability (work-relationship; involves medical
treatment or death, loss of consciousness, or in-patient
hospitalization, or days away from work restricted work activity, or
job transfer)" (Exs. 15: 100, 219).

In effect, the Proposed Recordkeeping Rule would include on the
Log those exposure incidents where a medical follow-up examination
actually rules out the resulting illness. I believe that the Logs
should not be used in this fashion any more than they should be used
to record incidents of high levels of workplace noise in the absence
of actual hearing loss, or incidents of employee exposure to highly
repetitive jobs in the absence of resulting musculo-skeletal
disorders. Simply stated, the OSH Act does not contemplate or intend
the recording of mere exposure incidents on the OSHA Log. To do so
would artificially overstate the relative safety and health risk in
the American workplace.

On the other hand, a number of commenters recommended that OSHA
require the recording of all bloodborne pathogen incidents as defined
in the bloodborne pathogens standard (see, e.g., Exs. 24, 15: 72, 153,
181, 196, 198, 289, 379, 380, 418). Several of these commenters urged
the recording of all exposure incidents to improve the information on
these injuries and promote better protection for workers (see, e.g.,
Exs. 24, 15: 72, 153, 181, 196, 289, 379, 380). The American
Association of Occupational Health Nurses (AAOHN) remarked "The
benefit in keeping these detailed records of bloodborne pathogen
exposures will be the ability to track the root cause of resultant
injuries and illnesses, regardless of latency" (Ex. 15: 181). The
National Association of Operating Room Nurses (Ex. 15: 72) added
"Reporting exposures may raise consciousness resulting in work
practice changes and decreased hazard."

Two commenters cited the severity of these incidents as a reason
for requiring the recording of all exposure incidents (Exs. 24; 15:
379). The American Nurses Association based its arguments on the
severity of the risk, stating "While the Center for Disease Control
and Prevention (CDC) Cooperative Needlestick Surveillance Group
reported no seroconversions to HIV positive from mucous membrane or
skin exposure, Hepatitis infections have been reported following
exposures via these routes. The nature of the risk to HIV however small
is very severe, deadly in fact; and the risk of Hepatitis is even
greater. Because of the severity of the risk, we believe that all
exposures must be recorded" (Ex. 24). The Service Employees
International Union (SEIU) added "The lives of thousands of health
care workers each year are unnecessarily devastated by occupational
exposure to hepatitis B, hepatitis C and HIV. A workplace exposure to
blood or other potentially infectious materials represents a
significant event in the life of a health care worker, regardless of
whether or not the exposure results in infection with hepatitis B,
hepatitis C or HIV" (Ex. 15: 379).

A few commenters remarked on the need for consistency between the
bloodborne pathogens standard and the recordkeeping requirements (see,
e.g., Exs. 15: 153, 198, 379). The National Association for Home Care
(NAHC) stated "NAHC believes that OSHA should maintain consistency
between individual OSHA bloodborne pathogen requirements and general
OSHA reporting requirements. Reporting of all exposure incidents is
consistent with OSHA's bloodborne pathogen regulations for health care
settings which require medical follow-up of employees for all exposure
incidents" (Ex. 15: 198).

Several commenters suggested recording all incidents as a method
for masking the identity of workers who actually contract disease as a
result of their injury (see, e.g., Exs. 15: 379, 380, 418). The AFL-CIO
(Ex. 15: 418) stated:

The AFL-CIO believes that exposures to bloodborne pathogens pose
a unique case with respect to confidentiality and privacy concerns.
As the Agency has recognized in the Bloodborne Pathogen Standard, 29
CFR 1910.1030, there are real and legitimate concerns about
discrimination against individuals who have tested positive for HIV
and other bloodborne infectious diseases. To address these
legitimate confidentiality concerns, the AFL-CIO believes that a
different approach to recording cases related to bloodborne
pathogens is required. For these cases, we recommend that the Agency
require the recording of needlestick injuries and all exposures to
blood or blood contaminated body fluids on the Log 300 and on the
301. Cases involving actual seroconversions should be recorded in
the confidential medical record. This approach would be consistent
with the approach and language in the bloodborne pathogen standard.
It would permit the log to be used to track individual cases of
exposure for prevention purposes, while at the same time maintaining
the confidentiality of individuals whose health status had changed
as a result of exposure. The AFL-CIO recognizes that this approach
will require the recording of exposure incidents which do not result
in the change of health status and sets different criteria for
recording cases related to bloodborne pathogens. Given the unique
confidentiality concerns associated with this set of conditions, we
believe that this special treatment for these conditions is
warranted.

After a review of the many comments in the record on this issue,
OSHA has decided to require the recording of all workplace injuries
from needlesticks and sharp objects that are contaminated with another
person's blood or other potentially infectious material (OPIM) on the
OSHA Log. These cases must be recorded, as described above, as privacy
concern cases, and the employer must keep a separate list of the
injured employees' names to enable government personnel to track these
cases. OSHA does not agree with those commenters who were of the
opinion that contaminated needlestick and sharps injuries are minor
injuries comparable in importance to a puncture by a sewing needle or
leather punch. OSHA also disagrees with those commenters who believed
these incidents are merely exposure incidents roughly comparable with
exposure to loud noises. These incidents are clearly injuries, where
the worker has experienced a cut or laceration wound.

OSHA recognizes that these injuries are different from most
workplace cuts and lacerations, whose seriousness depends largely on
the size, location, jaggedness, or degree of contamination of the cut,
which determines the need for medical treatment, restricted work, or
time away for recuperation and thus the recordability of the incident.
In contrast, all injuries from contaminated needles and sharps are
serious because of the risk of contracting a potentially fatal
bloodborne disease that is associated with them.

Many commenters argued that needlestick and sharps injuries are not
the kinds of injuries that Congress intended employers to record, as
articulated in the OSH Act (see, e.g., Exs. 15: 239, 308, 313, 345,
352, 353, 375, 395). As discussed earlier in the Legal Authority
section, OSHA disagrees, believing that Congress mandated the recording
of all non-minor injuries and illnesses as well as all injuries
resulting in medical treatment or one of the other general recording
criteria. OSHA finds that needlestick and sharps injuries involving
blood or other potentially infectious materials are non-minor injuries,
and therefore must be recorded. This conclusion is consistent with the
Senate Committee on Appropriations report accompanying the fiscal year
1999 Departments of Labor, Health and Human Services, and Education and
Related Agencies Appropriation Bill, 1999 (S. 2440) which included the
following language:

Accidental injuries from contaminated needles and other sharps
jeopardize the well-being of our Nation's health care workers and
result in preventable transmission of devastating bloodborne
illnesses, including HIV, hepatitis B, and hepatitis C. The
committee is concerned that the OSHA 200 Log does not accurately
reflect the occurrence of these injuries. The committee understands
that the reporting and recordkeeping standard (29 CFR 1904) requires
the recording on the OSHA 200 Log of injuries from potentially
contaminated needles and other sharps that result in: the
recommendation or administration of medical treatment beyond first
aid; death, restriction of work or motion; loss of consciousness,
transfer to another job, or seroconversion in the worker. Accidental
injuries with potentially contaminated needles or other sharps
require treatment beyond first aid. Therefore, the Committee urges
OSHA to require the recording on the OSHA 200 log of injuries from
needles and other sharps potentially contaminated with bloodborne
pathogens (Senate Report 105-300).

OSHA finds that these injuries are significant injuries because of the
risk of seroconversion, disease, and death, they pose (see the preamble
to the OSHA Bloodborne Pathogens Standard at 56 FR 64004).

OSHA recognizes that requiring the recording of all injuries from
contaminated needles and sharps will result in more cases being
recorded on employers' Logs and will increase the number of such
injuries reflected in the Nation's statistics. However, the Agency does
not agree that the statistics will be inappropriately inflated.
Instead, OSHA believes that the statistics will henceforth include, for
the first time, cases that reflect the incidence of these significant
injuries accurately. Adding these cases to the Nation's statistics will
create a more accurate accounting of work-related injury and illness
cases, information that will be useful to employers, employees, the
government and the public. In addition, the collection of this
information at the establishment level will generate data employers and
employees can use to analyze injury and illness patterns and make
improvements in work practices and equipment. Recording these injuries
will thus help to realize one of this rulemaking's primary goals, to
improve the utility and quality of the information in the records.

If OSHA were to adopt a final rule that only required the recording
of seroconversion cases and cases that met the general recording
criteria, as many commenters suggested (see, e.g., Exs. 15: 52, 200.
203, 219, 260, 262, 265, 271, 313, 329, 348, 352, 353, 401), the
Nation's statistics would not be as complete and accurate, and
workplace records would not have the same preventive value for
employees and employers. In addition, that approach would be more
complex because it would require employers to evaluate each case against
several criteria before recording it. The approach taken in the final rule is
considerably simpler. Recording all such injuries also helps to protect
the privacy of workers who have been injured in this way. Needlestick
and sharps injuries raise special privacy concerns. The comments on
this subject show a universal concern for the privacy of a worker's
medical information and disease status, and OSHA has taken several
special precautions, discussed elsewhere in the preamble, to protect
this privacy. Several commenters suggested recording all needlesticks
and sharps incidents as a method for masking the identify of workers
who actually contract disease (see, e.g., Exs. 15: 379, 380, 418). OSHA
has adopted this practice in the final rule because recording all of
these injuries will help to protect the privacy of individual workers
as well as produce higher quality data.

OSHA disagrees with those commenters who argued that the
§ 1904.8 recording requirement would be duplicative or redundant
with the requirements in the Bloodborne Pathogens standard (29 CFR
1910.1030). That standard requires the employer to document the
route(s) of exposure and the circumstances under which the exposure
incident occurred, but does not require that it be recorded on the Log
(instead, the standard requires only that such documentation be
maintained with an employee's medical records). The standard also has
no provisions requiring an employer to aggregate such information so
that it can be analyzed and used to correct hazardous conditions before
they result in additional exposures and/or infections. The same is true
for other medical records kept by employers: they do not substitute for
the OSHA Log or meet the purposes of the Log, even though they may
contain information about a case that is also recorded on the Log.

OSHA is requiring only that lacerations and puncture wounds that
involve contact with another person's blood or other potentially
infectious materials be recorded on the Log. Exposure incidents
involving exposure of the eyes, mouth, other mucous membranes or non-intact
skin to another person's blood or OPIM need not be recorded
unless they meet one or more of the general recording criteria, result
in a positive blood test (seroconversion), or result in the diagnosis
of a significant illness by a health care professional. Otherwise,
these exposure incidents are considered only to involve exposure and
not to constitute an injury or illness. In contrast, a needlestick
laceration or puncture wound is clearly an injury and, if it involves
exposure to human blood or other potentially infectious materials, it
rises to the level of seriousness that requires recording. For splashes
and other exposure incidents, the case does not rise to this level any
more than a chemical exposure does. If an employee who has been exposed
via a splash in the eye from the blood or OPIM of a person with a
bloodborne disease actually contracts an illness, or seroconverts, the
case would be recorded (provided that it meets one or more of the
general recording criteria).

Privacy Issues

There was support in the record for OSHA's proposal to record
occupationally acquired bloodborne pathogen diseases simply as the
initial bloodborne exposure incident to protect employee
confidentiality. Eli Lilly and Company (Ex. 15: 434) commented:

Lilly agrees with the Agency's proposed method of recording
exposure incidents that result in disease. All of these recordable
incidents should be recorded simply as the type of bloodborne
exposure incident (e.g. needlestick) with no reference to the type
of disease. While Lilly is concerned about protecting the privacy of
every individual employee's medical information, Lilly concedes that
the current social stigma resulting from bloodborne pathogen
diseases demands a more simple recordkeeping requirement.

Privacy issues, however, concerned many of the commenters to the
rulemaking record. Metropolitan Edison/Pennsylvania Electric Company
(M/P), for example, was so concerned with employee privacy that "[d]ue
to the sensitivity of Bloodborne Pathogenic diseases and related
confidentiality concerns, M/P disagrees with recording these types of
incidents" (Ex. 15: 254). The American Automobile Manufacturers
Association (AAMA), among others, expressed concern that the recording
requirement for bloodborne pathogen diseases would discourage employees
from reporting exposures and might also discourage individuals from
seeking treatment. AAMA wrote:

[m]any individuals who contract an infectious disease from a
workplace event or exposure will be against having their names on
the OSHA log for scrutiny by any employee or former employee of the
establishment. To openly list (on the OSHA log) an individual with
an infectious disease will discourage some employees from reporting
exposures. It may also discourage individuals from seeking
treatment, which may be lifesaving or which may limit the spread of
the disease. We oppose the development of any system which directly
or indirectly discourages individuals from seeking medical
evaluation or treatment, for the sake of data collection (Ex. 15:
409).

The AAMA proposed as an alternative "to remove all personal
identifiers for infectious disease cases from the OSHA log. Some type
of employer created coding system could be instituted, as long as the
code was consistently applied. Authorized medical personnel and
government representatives would be the only individuals permitted
access to the personal identifiers and/or key to the coding system"
(Ex. 15: 409). The Quaker Oats Company and the Ford Motor Company
supported similar alternatives (Exs. 15: 289, 347). A number of
commenters specifically supported the use of a coding system (see,
e.g., Exs. 15: 146, 213, 260, 262, 265, 345, 347, 409).

OSHA shares these commenters' concern about the privacy of
employees who seroconvert as the result of a bloodborne pathogens-related
needlestick or sharps incident and finds that these incidents
are clearly the type of non-minor occupational injury and illness
Congress intended to be included in the OSHA recordkeeping system. If
the Agency were to exclude these cases categorically from the records,
it would not be meeting the requirements of the OSH Act to produce
accurate statistics on occupational death, injury and illness.

The final recordkeeping rule addresses this issue by prohibiting
the entry of the employee's name on the OSHA 300 Log for injury and
illness cases involving blood and other potentially infectious
material. Further, by requiring employers to record all needlestick and
sharps incidents, regardless of the seroconversion status of the
employee, coworkers and representatives who have access to the Log will
be unable to ascertain the disease status of the injured worker. OSHA
believes that the privacy concern case approach of the final rule
obviates the need for a coding system because the case number assigned
to the recorded injury will serve the purpose of a code, without adding
additional complexity or burden. A discussion of access to the records
is contained in the portion of the preamble associated with section
1904.35, Employee Involvement.

The College of American Pathologists objected to the inclusion of
hepatitis C in the list of bloodborne pathogen diseases. They commented
that "the great majority of cases of hepatitis C lack any identifiable
source of exposure. More cases of HCV infection occur among non-health
care workers than among health care workers. To presume that an
individual who is infected with HCV acquired it on the job just because
they work in a health care setting is unjustified" (Ex. 15: 37). On the
other hand, a commenter from Waukesha Memorial Hospital suggested that
OSHA "should include all blood borne pathogen disease that develops as a
result of an exposure incident, not just HIV, Hep B, Hep C, even though
those are the major players in a hospital setting. Since we must teach that
there are many bloodborne pathogens, it doesn't make sense to me to only
record some and not all" (Ex. 15: 436). OSHA believes that hepatitis C
cases should, like other illness cases, be tested for recordability
using the geographic presumption that provides the principal rationale
for determining work-relatedness throughout this rule. OSHA also agrees
with the commenter from Waukesha Memorial Hospital that all bloodborne
pathogen diseases resulting from events or exposures in the workplace
should be recorded. Therefore, OSHA has modified the final regulatory
text of paragraph 1904.8(b)(4)(i) to reflect this decision.

The final rule, in paragraph 1904.9(a), requires an employer to
record an injury or illness case on the OSHA 300 Log when the employee
is medically removed under the medical surveillance requirements of any
OSHA standard. Paragraph 1904.9(b)(1) requires each such case to be
recorded as a case involving days away from work (if the employee does
not work during the medical removal) or as a case involving restricted
work activity (if the employee continues to work but in an area where
exposures are not present.) This paragraph also requires any medical
removal related to chemical exposure to be recorded as a poisoning
illness.

Paragraph 1904.9(b)(3) addresses the issue of medical removals that
are not required by an OSHA standard. In some cases employers
voluntarily rotate employees from one job to another to reduce exposure
to hazardous substances; job rotation is an administrative method of
reducing exposure that is permitted in some OSHA standards. Removal
(job transfer) of an asymptomatic employee for administrative exposure
control reasons does not require the case to be recorded on the OSHA
300 Log because no injury or illness -- the first step in the
recordkeeping process -- exists. Paragraph 1904.9(b)(3) only applies to
those substances with OSHA mandated medical removal criteria. For
injuries or illnesses caused by exposure to other substances or
hazards, the employer must look to the general requirements of
paragraphs 1910.7(b)(3) and (4) to determine how to record the days
away or days of restricted work.

The provisions of § 1904.9 are not the only recording criteria
for recording injuries and illnesses from these occupational exposures.
These provisions merely clarify the need to record specific cases,
which are often established with medical test results, that result in
days away from work, restricted work, or job transfer. The § 1904.9
provisions are included to produce more consistent data and provide
needed interpretation of the requirements for employers. However, if an
injury or illness results in the other criteria of § 1904.7 (death,
medical treatment, loss of consciousness, days away from work,
restricted work, transfer to another job, or diagnosis as a significant
illness or injury by a physician or other licensed health care
professional) the case must be recorded whether or not the medical
removal provisions of an OSHA standard have been met.

The recording of OSHA mandated medical removals was not addressed
in the 1996 recordkeeping proposal. OSHA has included the provisions of
§ 1904.9 in the final rule to address a deficiency noted by a number
of commenters, and as a replacement for criteria that were contemplated
for the recording of various ailments in proposed Appendix B (61 FR
4063-4065). For example, R. L. Powell, Personnel Safety Manager for
Union Carbide Corporation, (Ex. 15: 396) asked about medical removal
and restricted work:

How does this criteria [restricted work] apply to "medical
removal?" Medical removal is sometimes mandated by other OSHA
standards under certain conditions. A similar technique may also be
used by a physician to conduct controlled tests to assess the impact
of workplace factors on a condition such as a chemical sensitivity.

The proposed regulation requires recording lead and cadmium
cases based on biological action levels rather than on the onset of
illness. The purpose of the biological action level is to identify
those employees who are at greater risk of reaching the limits for
medical removal, so that onset of illness may be prevented. The use
of biological action levels as the basis of defining and recording
illness is inappropriate. Rather, lead and cadmium cases should be
recorded when medical removal is required by the specific standard.

This [proposed] statement clearly subverts the clear intent of
the OSHA lead standard that a blood lead level of 50 µg/100
g of whole blood and not 40 µg/100 g of whole blood is the
criteria for medical removal and therefore also the criteria for
documentation on the OSHA injury and illness log. Had the scientific
evidence on which the OSHA lead standard was based pointed clearly
to 40 µg/100 g of whole blood as the medical removal
standard and therefore the standard for documentation on the OSHA
injury and illness log the standard would have reflected this.
Therefore it would clearly subvert the purpose and scope of the OSHA
lead standard, that was based on scientific evidence and an
exhaustive public comment period on the scientific data, to
establish a clear benchmark for a recordable event on the injury and
illness log without the benefit of supporting scientific study and
data and a public comment period on such information.

The Institute of Scrap Recycling Industries, Inc is incorrect about
the lead standard's determination of recording criteria on the OSHA
injury and illness log. The lead standard (§ 1910.1025) does not
specifically address the recording issue, but the lead standard does
address the medical removal issue. The Institute points to the benefit
of using medical removal criteria for recording purposes, and OSHA
agrees that these criteria are useful for recordkeeping purposes. The
medical removal provisions of each standard were set using scientific
evidence established in the record devoted to that rulemaking. OSHA
takes care when setting the medical removal provisions of standards to
ensure that these provision reflect a material harm, i.e., the
existence of an abnormal condition that is non-minor and thus
worthy of entry in the OSHA injury and illness records.

Mercury, Lead, Cadmium, Benzene: In these cases, it is
appropriate to distinguish between biological markers that merely
point to exposure versus those that relate to illness or disease.
All of the recordability criteria for these substances are based on
various "action" levels stated in their respective OSHA
regulations. Southern Nuclear Operating Company believes that the
appropriate criteria for recording these cases as illnesses should
be the "medical removal" criteria stated in their respective
regulations coupled with a physician's diagnosis of disease rather
that the "action" levels as stated in the proposal. These
"medical removal" criteria are more indicative of disease or
illness. If the "action" levels for these substances are used as
the recording criteria, the number of illnesses recorded on the OSHA
log would more accurately reflect the numbers of workers covered by
a given exposure control program as opposed to the number of
illnesses that result from an inadequate program.

The American Petroleum Institute (API) argued that:

API incorporates in its recommended Appendix B the recording of
cases when medical removal is required by a specific OSHA standard.
API concedes this is inconsistent with the concept of "serious or
significant" -- and inconsistent with API's fundamental belief that
actions by employers to prevent cases from becoming serious should
not be recorded -- because such medical removals are by design
preventive; that is, intended to occur before a case becomes
serious. However, API acknowledges that it is extremely difficult to
define and get substantial agreement on any straight-forward and
verifiable criteria when such cases are indeed "serious".
Therefore, API has decided to recommend the medical-removal
criterion for Appendix B as the best on-balance solution for
situations involving toxic substance adsorption. (Ex. 15: 375)

A number of commenters opposed the use of mandatory medical removal
levels for injury and illness recording purposes (see, e.g., Exs. 25;
15: 146, 193, 258, 261, 304, 305, 318, 346, 358). Many argued that the
OSH Act did not support the use of medical removals (see, e.g., Exs.
25; 15: 258, 261, 304, 358). For example, the National Association of
Manufacturers (NAM) commented:

There is no reference in Section 24(a) or Section 8(c)(2) of the
OSH Act to recording exposure incidents that do not result in
disabling, serious or significant injuries or illnesses; or is there
any reference in those sections to medical removal provisions or
other action levels that do not result in disabling, serious or
significant injuries or illnesses. On the other hand, Section
8(c)(3) does discuss -- as a separate component of OSHA's occupational
safety and health statistics program -- maintaining records of
employee exposures to toxic materials and harmful physical agents
pursuant to standards issued under Section 6 of the OSH Act.

This is a rulemaking about the statistical program for tracking
disabling, serious or significant injuries and illnesses -- nothing
more and nothing less. We believe Congress determined that those are
the criteria that OSHA should utilize for this particular component
of its statistical program. A statistical program that aggregates
disabling, serious or significant injuries and illnesses with other
conditions and exposure incidents, is contrary to both the
congressional directive and the goal of this recordkeeping system.

While these commenters are correct in noting that the OSH Act does
not specifically address medical removal levels and whether or not
cases meeting these levels should be recorded, the Act also does not
exclude them. The Act does require the recording of injuries and
illnesses that result in "restriction of work or motion" or
"transfer to another job." OSHA finds that cases involving a
mandatory medical removal are cases that involve serious, significant,
disabling illnesses resulting in restriction of work and transfer to
another job, or both. These medical restrictions result either in days
away from work (form of restriction) or days when the worker can work
but is restricted from performing his or her customary duties.

An abnormally high level of a toxic material in an individual's
blood (e.g., a lead level at or above the action level or the level
requiring "medical removal" under OSHA's Lead Standard) is not and
should not, in itself, be considered a recordable injury or illness.
A preventive or prophylactic measure such as medical removal (as
opposed to a restorative or curative measure) is not and should not
be deemed medical treatment, a job transfer or restricted activity
for purposes of recordability in the absence of a diagnosis of a
substantial impairment of a bodily function.

As stated previously, a "diagnosis of substantial impairment of a
bodily function" is not required for a case to meet OSHA recordkeeping
criteria, nor is it a limitation to recordability under the OSH Act.
Many injuries and illnesses meet the recording criteria of the Act but
lack diagnosis of a substantial impairment of a bodily function.
Although the medical removal provisions are included in OSHA's
standards to encourage participation in the medical program by
employees and to prevent progression to serious and perhaps
irreversible illness, they also reflect illnesses caused by exposures
in the workplace and are thus themselves recordable. The workers are
being removed not only to prevent illness, but to prevent further
damage beyond what has already been done. Thus OSHA does not agree that
medical removal measures are purely preventive in nature; instead, they
are also remedial measures taken when specific biological test results
indicate that a worker has been made ill by workplace exposures.

OSHA has therefore included section 1904.9 in the final rule to
provide a uniform, simple method for recording a variety of serious
disorders that have been addressed by OSHA standards. The § 1904.9
provisions of the final rule cover all of the OSHA standards with
medical removal provisions, regardless of whether or not those
provisions are based on medical tests, physicians' opinions, or a
combination of the two. Finally, by relying on the medical removal
provisions in any OSHA standard, section 1904.9 of the final rule
establishes recording criteria for future standards, and avoids the
need to amend the recordkeeping rule whenever OSHA issues a standard
containing a medical removal level.

The recording criteria employers should use to record occupational
hearing loss on the OSHA recordkeeping forms have been an issue since
OSHA first proposed to require hearing conservation programs for
general industry employers (39 FR 37775, October 24, 1974). Job-related
hearing loss is a significant occupational safety and health issue
because millions of workers are employed in noisy workplaces and
thousands of workers experience noise-induced hearing loss each year.
Noise-induced hearing loss is a serious and irreversible condition that
may affect the safety and well-being of workers for the rest of their
lives.

For the nation as a whole in 1997, the BLS reported only 495 cases
of occupational hearing loss resulting in days away from work
(http://stats.bls.gov/case/ostb0684.txt;
BLS Characteristics Data Table R15 of
04/22/1999). Hearing loss is not the type of occupational injury or
illness that typically requires days away from work for recuperation,
as is often the case for a fracture, fall, or carpal tunnel syndrome case.
OSHA believes that there are many cases of hearing loss -- probably
numbering in the thousands -- that occur every year as a result of
job-related noise exposure but do not result in days away from work
and are thus not captured in the BLS statistics. Because these hearing
losses are often permanent, a large number of Americans, both working
and retired, are currently suffering the effects of hearing loss due to
occupational exposure.

The changes being made to the OSHA 300 form in the final rule will
improve the quality of the data collected nationally on this important
occupational condition by providing consistent hearing loss recording
criteria, thus improving the consistency of the hearing loss statistics
generated by the BLS occupational injury and illness collection
program. National hearing loss statistics will also be improved because
OSHA has added a column to the OSHA 300 Log that will require
employers, for the first time, to separately collect and summarize data
specific to occupational hearing loss. These changes mean that the BLS
will collect hearing loss data in future years, both for cases with and
without days away from work, which will allow for more reliable
published statistics concerning this widespread occupational disorder.

Paragraph 1904.10(a) of the final rule being published today
requires an employer to record an employee's hearing test (audiogram)
result if that result reveals that a Standard Threshold Shift (STS) for
that employee has occurred. If the employee is one who is covered by
the medical surveillance requirements of OSHA's Occupational Noise
standard (29 CFR 1910.95), compliance with the standard will generate
the information necessary to make recording decisions.

If the employee is not covered by the 29 CFR 1910.95 noise
standard, OSHA rules do not require the employer to administer baseline
or periodic audiograms, and the 1904 rule does not impose any new
requirements for employers to obtain baseline information where it is
not already required. However, some employers conduct such tests and
acquire such information for other reasons. If the employer's workplace
is a high noise environment (i.e., has noise levels that exceed 85 dBA)
and the employer has the relevant audiogram information for an
employee, the employer must record any identified work-related hearing
loss equal to or greater than an OSHA-defined STS on the Log. This
means that an employer in the construction industry, for example, who
is aware that his or her work activities regularly generate high noise
levels and who has audiometric data on the hearing level of the
employees exposed to those noise levels must record on the Log any STS
detected in those workers. OSHA believes that this approach to the
recording of work-related hearing loss cases among these workers not
covered by the noise standard is appropriate because it is reasonable,
protective, and administratively straightforward.

Paragraph 1904.10(b)(1) of the final rule defines an STS as that
term is defined in the Occupational Noise Standard: as a change in an
employee's hearing threshold, relative to the baseline audiogram for
that employee, of an average of 10 decibels (dB) or more at 2000, 3000,
and 4000 hertz in one or both ears. The Noise standard, at paragraph
1910.95(c)(1), describes the employees in general industry who are
covered by the required hearing conservation program as follows:

The employer shall administer a continuing, effective hearing
conservation program, as described in paragraphs (c) through (o) of
this section, whenever employee noise exposures equal or exceed an
8-hour time-weighted average sound level (TWA) of 85 decibels
measured on the A scale (slow response) or, equivalently, a dose of
fifty percent. For purposes of the hearing conservation program,
employee noise exposures shall be computed in accordance with
appendix A and Table G-16a, and without regard to any attenuation
provided by the use of personal protective equipment.

Paragraph 1904.10(b)( 2) of the final recordkeeping rule directs
employers how to determine whether a recordable STS has occurred. The
paragraph deals with two situations: (1) where the employee has not
previously experienced such a hearing loss, and (2) where the employee
has experienced a past recordable hearing loss. If the employee has
never previously experienced a recordable hearing loss, the employer
must compare the results of the employee's current audiogram with the
employee's baseline audiogram, if the employee has a baseline
audiogram. The employee's baseline audiogram could either be that
employee's original baseline audiogram or a revised baseline audiogram
adopted in accordance with paragraph (g)(9) of 29 CFR 1910.95. For
employees who have not previously had a recordable hearing loss with
that employer, the loss in hearing is computed using the preemployment
hearing test result so that any hearing loss the employee may have
experienced before obtaining employment with the employer is not
attributed to noise exposure in that employer's workplace.

If the employee has previously experienced a recordable hearing
loss, the employer must compare the employee's current audiogram with
the employee's revised baseline audiogram (i.e., the audiogram
reflecting the prior recorded hearing loss). For employees who have had
a previously recordable hearing loss with that employer, the final
recordkeeping rule thus ensures that the employer does not record the
same case of hearing loss twice, but that if a second STS occurs, the
employer will record that additional hearing loss.

Paragraphs 1904.10(b)(3) and (4) of the final rule allow the
employer to take into account the hearing loss that occurs as a result
of the aging process and to retest an employee who has an STS on an
audiogram to ensure that the STS is permanent before recording it. The
employer may correct the employee's audiogram results for aging, using
the same methods allowed by the OSHA Noise standard (29 CFR 1910.95).
Appendix F of § 1910.95 provides age correction for presbycusis
(age-induced hearing loss) in Tables F-1 (for males) and F-2 (for
females). Further, as permitted by the Noise standard, the employer may
obtain a second audiogram for employees whose first audiogram registers
an STS if the second audiogram is taken within 30 days of the first
audiogram. The employer may delay recording of the hearing loss case
until the STS is confirmed by the second audiogram and is, or course,
not required to record the case if the second audiogram reveals that
the STS was not permanent.

Paragraph 1904.10(b)(5) of the final rule establishes how employers
are to determine the work-relatedness of hearing loss cases. This
paragraph specifies that, in accordance with the recordkeeping rule's
definition of work-relationship, hearing loss is presumed to be work-related
for recordkeeping purposes if the employee is exposed to noise
in the workplace at an 8-hour time-weighted average of 85 dB(A) or
greater, or to a total noise dose of 50 percent, as defined in 29 CFR
1910.95. (Noise dose is defined as the amount of actual employee
exposure to noise relative to the permissible exposure limit for noise;
a dose greater than 100% represents exposure above the limit.) For
hearing loss cases where the employee is not exposed to this level of
workplace noise, or where the employee is not covered by the
Occupational Noise standard, the employer must use the rules set out in
§ 1904.5 to determine if the hearing loss is to be considered work
related for recordkeeping purposes.

Paragraph 1904.10(b)(6) allows the employer not to record a hearing
loss case if physician or other licensed health care professional
determines that the hearing loss is not work-related or has not been
aggravated by occupational noise exposure. This provision is consistent
with the Occupational Noise standard, and it allows the employer not to
record a hearing loss case that is not related to workplace events or
exposures; examples of such cases are hearing loss cases occurring
before the employee is hired or those unrelated to workplace noise.

The recordkeeping provisions in section 1904.10 of the final
recordkeeping rule thus match the provisions of the Occupational Noise
standard by (1) covering the same employers and employees (with the
exception of cases occurring among employees not covered by that
standard whose employers have audiometric test results and high-noise
workplaces); (2) using the same measurements of workplace noise; (3)
using a common definition of hearing loss, i.e., the STS; (4) using the
same hearing loss measurement methods; (5) using the same definitions
of baseline audiogram and revised baseline audiogram; (6) using the
same method to account for age correction in audiogram results; and (7)
allowing certain temporary threshold shifts to be set aside if a
subsequent audiogram demonstrates that they are not permanent or a
physician or other licensed health care professional finds they are not
related to workplace noise exposure.

The Former Rule

The regulatory text of OSHA's former recordkeeping rule did not
specifically address the recording of hearing loss cases, and the
§ 1910.95 Occupational Noise Standard does not address the recording
of hearing loss cases on the OSHA Log. However, the 1986 Recordkeeping
Guidelines provided clear advice to employers to the effect that work-related
hearing loss was a recordable disorder, that it could be either
an injury or illness, depending on the events and exposures causing the
hearing loss, and that all hearing loss illnesses were required to be
recorded, regardless of the industry in which the employer worked (Ex.
2, p. 4). However, the Guidelines did not provide specific guidance on
the kinds of hearing test or audiogram results that would constitute a
recordable, work-related hearing loss.

In 1990, OSHA considered issuing a Compliance Directive addressing
the recording of hearing loss cases on employers' OSHA 200 Logs, but
decided that the issue of the recording of hearing loss cases should be
addressed through notice-and-comment rulemaking at the time of the
revision of the recordkeeping rule. To address this topic in the
interim before the final recordkeeping rule was issued, OSHA sent a
memorandum to its field staff (June 4, 1991) to clarify its enforcement
policy on the recording of occupational hearing loss and cumulative
trauma disorders on the OSHA 200 Log, on the grounds that these cases
"have received national attention and require immediate
clarification." The memorandum specified that "OSHA will issue
citations to employers for failing to record work related shifts in
hearing of an average of 25 dB or more at 2000, 3000, and 4000 hertz
(Hz) in either ear on the OSHA 200 Log." The interim enforcement
policy was intended to provide a conservative approach to the issue
until the recordkeeping rulemaking was completed. The interim policy
stated that "The upcoming revision of the recordkeeping regulations,
guidelines and related instructional materials will address the
recordability criteria for all work related injuries and illnesses."
The memo also mentioned the use of standard threshold shifts (STS)
results, saying:

Employers are presently required by 29 CFR 1910.95 to inform
employees in writing within 21 days of the determination of a
Standard Threshold Shift (an average of 10 dB or more at 2000, 3000
and 4000 Hz in either ear) and to conduct specific follow-up
procedures as required in paragraph (g) of the standard. Employers
should be encouraged to use this information as a tracking tool for
focusing noise reduction and hearing protection efforts.

The Proposal

The proposed recordkeeping criterion for recording a case of
hearing loss (61 FR 4064) was an average shift of 15 decibels (dB) or
more at 2000, 3000, and 4000 hertz in one or both ears after the
employee's hearing loss had been adjusted for presbycusis (age-related
hearing loss). OSHA proposed to permit employers to delete the record
of the hearing loss injury or illness if a retest performed within 30
days indicated that the original shift was not permanent. Once a 15 dB
work-related shift had occurred, however, OSHA proposed that the
employee's baseline audiogram (for recordkeeping purposes) be adjusted
to reflect that loss. A subsequent audiogram would have to reveal an
additional 15 dB shift from the new or revised baseline value to be
considered a new hearing loss injury or illness. OSHA proposed to
presume work-relationship if an employee was exposed on the job to an
8-hour time-weighted average noise level equaling 85 dB(A) (61 FR
4064).

OSHA also raised several issues related to hearing loss recording
in the proposal (61 FR 4064):

The lowest action level in the noise standard is an average
shift of 10 decibels or more at 2000, 3000 and 4000 hertz. OSHA is
proposing the 15 decibel criteria for recordkeeping purposes to
account for variations in the reliability of individual audiometric
testing results.

OSHA asks for input on which level of a shift in hearing should
be used as a recording criteria; 10 decibels? 20 decibels? 25
decibels? For each level, what baseline should be used?
Preemployment (original) baseline? Audiometric zero? Is adjusting
for presbycusis appropriate?

Comments on the Proposal

OSHA's proposed recording criterion for hearing loss received more
comments than the proposed criterion for any other type of injury or
illness other than musculoskeletal disorders. The hearing loss comments
cover a wide variety of issues, including which hearing test results
should or should not be considered an OSHA recordable illness, the
choice of baseline audiograms, retesting and persistence of hearing
loss, determining work relatedness, the appropriateness of correcting
audiograms for aging (presbycusis), and the role of physicians and
other licensed health care professionals in the determination of
recordable hearing loss cases. The issues raised by commenters are
organized by topic and discussed below.

The Definition of Recordable Hearing Loss

There was limited support among commenters for OSHA's proposed 15
dB shift recording criterion (see, e.g., Exs. 15: 50, 61, 84, 111, 113,
156, 188, 233, 281, 289, 349, 407). However, many of these commenters
supported the use of a 15 dB shift as the recording criterion only if
the final recordkeeping rule also reflected other changes, such as
eliminating the correction for aging (see, e.g., Exs. 15: 50, 188, 407)
or limiting the recording of hearing loss to one case per worker per
lifetime (Ex. 15: 349). For example, General Electric (Ex. 15: 349)
suggested limiting the recording of hearing loss to one case per
employee:

GE supports recording an average standard threshold shift of 15
decibels (dB) or more at 2000, 3000, and 4000 hertz in one or both
ears, adjusted for presbycusis and with a deletion upon retest as
described. The establishment of the recording criteria at a level
slightly higher than STS requiring action in the noise standards
allows the employer the opportunity to take action before the STS
progresses to a recordable injury. GE recommends, however, that, to
reduce the administrative burden, the baseline not be revised after
the shift, that the original baseline be maintained and the hearing
loss only be recorded on the initial occasion of the 15 dB shift.

George R. Cook and Omar Jaurez, occupational audiologists (Ex. 15:
50), supported the 15dB level only if no adjustment for aging was
allowed:

[t]he Noise Standard has two loopholes in the identification of
STS. First it allows for revision of baseline when the loss is
persistent. The Standard does not identify persistence and it is
possible to revise a baseline early and subsequent STSs would be
postponed. The second loophole is the allowance of presbycusis which
hides changes in hearing. Therefore, a criteria which separates the
recording criteria from STS and protects the required STS follow-up
is necessary. A 20 or 25 dB criteria is felt to be too much change.

The appropriate recording trigger should be the loss of hearing
recognized by the American Medical Association (AMA) as the lowest
indicator of any material impairment to the employee's hearing.
According to the AMA, a person has suffered material impairment when
testing reveals a 25 dB average hearing loss from audiometric zero
at 500, 1000, 2000, and 3000 hertz. OSHA itself has recognized that
this is the lowest level of hearing loss that constitutes any
material hearing impairment. see 46 Fed. Reg. 4083 (Jan. 18, 1981).
Below that level, an employee has suffered no noticeable injury or
illness.

The American Iron and Steel Institute disagreed that a 10 or a 15
dB shift in hearing should be recorded, stating that "While a 15 dB
shift is arguably closer to a serious injury than a 10 dB shift,
neither is a principled approximation of the onset of any disabling
illness or injury, and each is inconsistent with OSHA's acknowledgment
in Forging Indus. Ass'n v. Secretary of Labor, 773 F.2d 1436, 1447 n.18
(4th Cir. 1985), that no injury results until a person experiences a 25
dB loss." (OSHA does not agree with this characterization of its
position.)

Similarly, the Monsanto Company commented "OSHA acknowledges in
the Hearing Conservation Amendment Standard that STS will occur and
nothing is required to be done to prevent it from occurring. Therefore,
it cannot be a measure of significantly impaired functional hearing
capacity. In the preamble to this rule, OSHA cites several excerpts of
testimony supporting this position" (Ex. 15: 295).

Vulcan Chemicals commented that it "believes the present
requirement [of a hearing level shift of 25 dB for recordkeeping] is
protective and recommends that the recordable criteria should remain at
25 decibels" (Ex. 15: 171). New England Power justified its support
for a 25 dB shift as the recording criteria with the comment that there
"is far too much variability with an individual subject and the
equipment to ensure accuracy" (Ex. 15: 170), and Tosco, arguing in a
similar vein, commented that the "existing 25 dB shift provides an
easily identifiable measurement for determining injuries, and also
provides for variation in background noise during testing, variability
of the employee's health/hearing capability on the day being tested, as
well as variation in the employee's home/social lifestyle which may
contribute to hearing loss" (Ex. 15: 246). The Can Manufacturers
Institute commented that a 25 dB shift criterion "would identify as
consequential change in hearing acuity that is irreversible and
minimize multiple recording of change over time" (Ex. 15: 331).

There was also support in the rulemaking record for using a 20 dB
shift as a criterion for recording hearing loss (see, e.g., Exs. 15:
108, 295, 396, 405, 423). Most of the reasons given for supporting this
level were the same as those provided as support for a 25 dB shift
recording criterion. For example, the Westinghouse Electric Corporation
commented that a "20 decibel shift would not only allow for variances
in individual audiometric tests, but would also allow for the fact that
workplace noise levels are quite often more controlled and less severe
than noise levels in the home environment (e.g., trap shooting, stereo
sound levels, lawn mowing, and other types of non job-related
activities)" (Ex. 15: 405). Commenting that a 20 dB shift is two times
the action level of a 10 dB shift prescribed by OSHA's Occupational
Noise standard (29 CFR 1910.95), Brown and Root, Inc. suggested that
this level "would allow for a program to be initiated [at the action
level] and working before a case becomes recordable. If the program,
however, is not as effective as desired, the recordable level would
require that the case be logged" (Ex. 15: 423). Finally, Union Carbide
Corporation argued that using a 20 dB shift as a recording criterion.

[i]s in the direction of simplicity since this is an even
multiple of 10 dB, which is the standard threshold shift and the
action level for triggering certain hearing conservation
requirements. Having an even multiple makes it much easier to track
two different baselines one for the hearing conservation
requirements and one for recordkeeping requirements. Our experience
has shown that it is an administrative nightmare to track 10 dB
baselines for hearing conservation and 25 dB baselines for
recordkeeping (Ex. 15: 396).

Industrial Health, Inc. (Ex. 15: 84), a mobile audiometry vendor,
supported either a 10 dB or 15 dB persistent shift as the recording
criterion and provided an analysis, using their data base of over 4
million audiograms. Their comments on the merits of the 10 dB and 15 dB
options, and whether each change is significant and noise related, are:

Noise relatedness: Using the OSHA shift formula across 2, 3 & 4
KHz (including OSHA's corrections for aging), a persistent shift of
either 10dB or 15dB shows a strong correlation with audiogram
patterns typical of exposure to noise (our samples showed more than
85 percent of such shifts appeared to be noise related, and most of
the remainder had been flagged by the reviewing audiologist as
either medical referrals or cases where the employee had given a
medically related explanation for the shift in hearing). Hence, we
conclude that a persistent shift based on the OSHA shift formula
with age correction, whether 10 dB or 15 dB, is a reasonably
accurate indication of a hearing change due to noise exposure
provided that medically related shifts are excluded.

Significance of change: We calculated historic shifts based on
both a 10 dB shift and a 15 dB shift on a sample industrial
database. The following results are for persistent shifts only. The
results showed that 15 dB shifts occurred less often than 10 dB
shifts (as would be expected), with approximately 70% as many 15 dB
shifts as 10 dB shifts. When both shifts occurred for an employee,
most (over 80%) of the 15 dB shifts occurred at exactly the same
test dates as did the 10 dB shifts, although in some cases (less
than 20%) the 15 dB shifts occurred at later times. In general, the
agreement was surprisingly good -- much better than we had expected.
In most (about 80%) of the instances where a 10 dB shift occurred
but a 15 dB shift did not, the significance of the 10 dB shift was
questionable when the actual data were examined. Less than 5% of what we
judged to be significant 10 dB shifts were missed by the 15 dB rule.

As a result, our analysis indicates the following (based again
on all shifts having been demonstrated to be persistent):

a. A persistent 10 dB shift with age correction is a reasonably
good yardstick for significant change due to noise, although it does
flag some changes which are of questionable significance (perhaps as
high as 20% of the shifts).

b. A persistent 15 dB shift with age correction is a better
yardstick for significant change due to noise. In our tests it
produced roughly 70 percent as many shifts as the 10 dB rule, but
the difference was largely 10 dB shifts of questionable
significance. It did report some changes later than the 10 dB rule
and missed a few shifts (about 5%) which we judged to be of
significance.

Finally, there was strong support in the rulemaking record for
using a 10 dB shift (also identified as a standard threshold shift or
STS in the OSHA Noise standard) as a recording criterion for hearing
loss (see, e.g., Exs. 26; 42; 15: 25, 110, 251, 310, 347, 350, 369,
394). For example, the American College of Occupational and
Environmental Medicine noted that the "STS is the earliest reliable
indication of measurable hearing loss for practical purposes. This is
the earliest practical level of early detection and prevention of
further loss is quite possible if the correct measures are taken" (Ex.
15: 251). The Ford Motor Company agreed. Commenting that it currently
records any work-related hearing loss that results in an average loss
of 10 dB or more, the company noted that "[r]ecording hearing loss in
its early stage provides Ford the information to correct hazardous
conditions and prevent serious impairment to an employee" (Ex. 15:
347). Ford further stated that its "method of recording occupational
hearing loss is consistent with the requirement of the Hearing
Conservation Amendment which requires notification to the employee."
The Laborer's Health and Safety Fund of North America also pointed out
the inconsistency between OSHA's proposed recording criterion in the
recordkeeping rule and the criterion in OSHA's occupational noise
exposure standard. The Fund commented:

"The noise standard defines a 10 dB shift at 2, 3, and 4K as a
standard threshold shift and allows a revision of the baseline
should the shift persist. Along comes the recordkeeping rule which
says that a 15 dB shift is recordable, and a baseline revision (for
recordkeeping purposes) can be made when a 15 dB shift occurs. This
situation is an administrative nightmare. It is possible that a
hearing loss will never be recordable because the 'baseline' is
revised at a 10 dB shift. To avoid this situation, an employer would
have to establish 2 different baselines, one for the noise standard
provisions, and one for the recordkeeping rule provisions. This
situation is unacceptable. We recommend that standard threshold
shifts of 10 dB be used as the recordability criteria, since it is
consistent with the 1910.95 noise standard" (Ex. 15: 310).

The Coalition to Preserve OSHA and NIOSH and Protect Workers'
Hearing (Exs. 26, 42) recommended a recording policy that would capture
instances of age-corrected STS, as defined in the OSHA noise standard,
that are confirmed as persistent and that are determined to be work-related.
The Coalition's comments are of particular interest because
its members include professional and scientific organizations dedicated
to the issue of studying and preventing hearing loss. Member
associations include the American Speech-Language-Hearing Association,
the American Industrial Hygiene Association, the National Hearing
Conservation Association, the Acoustical Society of America, the
Council for Accreditation in Occupational Hearing Conservation, Self
Help for Hard of Hearing People, Inc. and the Institute for Noise
Control Engineering. These groups represent well over 100,000
audiologists, acousticians, speech-language pathologists, industrial
hygienists, safety and health professionals, and persons with hearing
loss (Ex. 42, page 1).

The Coalition provided the following reasons for relying on a 10 dB
shift in hearing as an OSHA recordable condition (Ex. 42, pp. 9-13).

1. An allowance in the recording criteria for test-retest
variability is inappropriate (i.e. OSHA proposed the 15 dB criterion
rather than the 10 dB criterion "to account for variations in the
reliability of individual audiometric results."

2. An age-corrected STS is a large hearing change that can
affect communicative competence.

Other commenters proposed still other criteria for recording
hearing loss. For example, Detroit Edison stated that a shift in
hearing level should not be used as a recording criterion for hearing
loss because this "is not indicative of an illness or injury, but only
an indication that someone has had a slight change in their ability to
hear" and proposed instead that "the level of hearing impairment
should be used in recording hearing losses versus a threshold shift as
compared to a baseline" (Ex. 15: 377). OSHA does not agree with this
commenter, however, because, as the record in the Noise standard
rulemaking indicates, permanent threshold shifts do indicate a non-minor
impairment, although not all STSs are disabling.

As is the case for many OSHA rules, the 1981 Noise standard was
challenged in the courts, which stayed several provisions. In 1983,
OSHA revised the hearing conservation amendment to revoke many of the
provisions stayed by the court, lift an administrative stay implemented
by OSHA, and make technical corrections (48 FR 9738). One of those
provisions involved the definition of STS, which was renamed a
"standard" rather than "significant" threshold shift to help
differentiate the two separate methods used to calculate the STS in the
1981 and 1983 rules. Although OSHA changed the calculation method used
to establish an STS in 1983, the role and importance of the STS concept
in the context of a hearing conservation program was unchanged. The
main reason for changing the definition of STS in the 1983 standard was
to simplify the original calculation and address the concerns of
employers and audiology professionals who wished to avoid using a
computer to calculate an STS. The standard requires employers to take
follow-up actions when an STS is identified, notify the affected
employee, evaluate and refit hearing protectors, retrain the employee,
and, if necessary, refer the employee for medical evaluation.

The arguments put forward by the Coalition to Preserve OSHA and
NIOSH and Protect Workers' Hearing (Exs. 26, 42) are, in OSHA's view,
compelling reasons for requiring employers to record on their Logs any
case of work-related hearing loss that reaches the level of an STS.
OSHA is particularly persuaded by the Coalition's argument that "An
age-corrected STS is a large hearing change that can affect
communicative competence" because an age-corrected STS represents a
significant amount of cumulative hearing change from baseline hearing
levels. In the words of the Coalition, "For an individual with normal
hearing on the baseline audiogram, STS usually involves age-corrected
shifts of 15-20 dB at 3000 and 4000 Hz. For an individual with pre-existing
high-frequency hearing loss on the baseline, STS usually
involves substantial progression of the hearing loss into the critical
speech frequencies. The absolute shift values before age corrections
are considerably larger." The Coalition also stressed that the method of
averaging hearing loss at several frequencies, as is required to
determine an STS under the OSHA Noise standard, tends to "obscure the
large hearing shifts at individual frequencies which usually occur
before the average changes by a specified amount" (Ex. 42, p. 10).

OSHA has rejected, for recordkeeping purposes, the use of the 25 dB
shift from audiometric zero prescribed by the American Medical
Association Guidelines for Material Impairment. The AMA's 25 dB
criterion is intended to be used to determine the level at which the
employee should be compensated for hearing loss-related medical bills
or lost time. In the context of occupational noise exposure, hearing
loss of this magnitude reflects a serious impairment of health or
functional capacity. As discussed in the Legal Authority section,
however, the Congress intended the OSHA recordkeeping system to capture
all non-minor occupational injuries and illnesses, and OSHA believes
that an STS loss of hearing represents such an injury. An STS is an
abnormal condition that should be recorded because it represents a
material loss in hearing ability, beyond the normal effects of aging.

OSHA has also rejected the 15 dB and 20 dB shift recording options,
for several reasons. First, although OSHA suggested in the proposal
that an additional 5 dB beyond the 10-dB STS shift was needed to
account for variability in testing, this has not been supported by the
record. As the Medical Educational Development Institute (Ex. 15: 25)
stated: "[t]est/re-test reliability of 5 dB is well established in
hearing testing. For example, the Council on Accrediting Occupational
Hearing Conservationists maintain this range of reliability in their
training guidelines and this is recognized in American National
Standard Method for Manual Pure-Tone Threshold Audiometry, S3.21 -- 1978
(R1992)."

The Coalition to Preserve OSHA and NIOSH and Protect Workers'
Hearing (Ex. 26) provided additional justification for dropping the
proposed rule's 5 dB reliability margin: "The allowance for a retest
(or even multiple retests) should largely eliminate spurious shifts due
to measurement error in audiometry. In fact, one of OSHA's original
reasons for choosing a frequency-averaged shift (the OSHA STS) as a
trigger level for employee follow-up was that the frequency averaging
process reduces the influence of random audiometric variability."
Because reliance on a frequency-averaged rather than single frequency
shift increases the reliability of audiometric measurements, OSHA has
not adopted NIOSH's recommendation that the hearing loss criterion
should be a 15 dB shift at any frequency (Ex. 15: 407). Single
frequency calculations are less reliable and may therefore lead to the
under- or over-recording of hearing loss cases compared with the STS
method of averaging loss over several frequencies.

In the final recordkeeping rule, OSHA has chosen to use the
Occupational Noise standard's STS -- an average shift in either ear of 10
dB or more at 2000, 3000, and 4000 hertz -- as the shift in hearing that
must be recorded by an employer on the OSHA log as a hearing loss case.
An STS clearly represents a non-minor injury or illness of the type
Congress identified as appropriate for recordkeeping purposes. The
final rule allows the employer to adjust an employee's hearing test
results for presbycusis (age), to retest within 30 days (the employer
is not required to record if there is a retest within 30 days and the
retest refutes the original test), and to have the test results
evaluated by a physician or other licensed health care professional.
Using the STS as the recording criterion also meets one of the primary
purposes of this rulemaking, to improve the simplicity of the overall
recordkeeping system. Relying on the Noise standard's STS shifts avoids
the complexity referred to by many commenters (see, e.g., Exs. 15: 310,
396) of maintaining multiple baselines for the Noise standard and the
OSHA recordkeeping rule. As the Laborers' Health & Safety Fund of North
America (Ex. 15: 310) commented:

The noise standard defines a 10 dB shift at 2,3, and 4K as a
standard threshold shift and allows a revision of the baseline
should the shift persist. Along comes the recordkeeping rule which
says that a 15 dB shift is recordable, and a baseline revision (for
recordkeeping purposes) can be made when a 15 dB shift occurs. This
situation is an administrative nightmare. It is possible that a
hearing loss will never be recordable because the baseline is
revised at a 10 dB shift. To avoid this situation, an employer would
have to establish 2 different baselines, one for the noise standard
provisions, and one for the recordkeeping rule provisions. This
situation is unacceptable. We recommend that standard threshold
shifts of 10 dB be used as the recordability criteria, since it is
consistent with the 1910.95 noise standard.

Several commenters (see, e.g., Exs. 15: 295, 395) argued that OSHA
itself had discounted the significance of the 10 dB STS during the 29
CFR 1910.95 rulemaking. OSHA disagrees with this assessment of the
Agency's position on the importance of an STS. In the 1981 preamble to
the Hearing Conservation Amendment, OSHA found that a 10 dB shift in
hearing threshold is significant because it is outside the range of
audiometric error and "it is serious enough to warrant prompt
attention" (46 FR 4144). The 1983 preamble reinforces these findings. It states that:

Correctly identifying standard threshold shifts will enable
employers and employees to take corrective action so that the
progression of hearing loss may be stopped before it becomes
handicapping. Moreover, a standardized definition of STS will ensure
that the protection afforded to exposed employees is uniform in
regard to follow-up procedures. * * *

OSHA reaffirms its position on the ideal criterion for STS which
was articulated in the January 16, 1981 promulgation (see 46 FR
4144). The criterion must be sensitive enough to identify meaningful
changes in hearing level so that follow-up procedures can be
implemented to prevent further deterioration of hearing but must not
be so sensitive as to pick up spurious shifts (sometimes referred to
as "false positives"). In other words, the criterion selected must
be outside the range of audiometric error (48 FR 9760).

The Fourth Circuit rejected an employer's argument that a 10 dB
shift in hearing threshold is insignificant. In its decision upholding
OSHA's use of a 10 dB STS as an action level in the Hearing
Conservation Amendment, the court found that:

[t]he amendment is concerned with protecting workers before they
sustain an irreversible shift. Consequently, it was incumbent upon
the Agency to select a trigger level that would protect workers by
providing an early warning yet not to be so low as to be
insignificant or within the range of audiometric error. We find that
the Agency struck a reasonable balance between those concerns. * * *

OSHA believes that many of the reasons stated in the 1983 preamble
make the STS an appropriate recording criterion for recordkeeping
purposes. For example, employers are familiar with the STS definition,
which is also sensitive enough to identify a non-minor change in
hearing. Use of the STS also reduces the confusion that would arise
were OSHA to require employers to maintain two baselines: one required
by the Occupational Noise standard and one required for recordkeeping
purposes.

Baseline Audiogram

In its proposal, OSHA also asked for comment on which baseline
should be used as the starting point in determining recordable hearing
loss. There was strong support in the record for using
the preemployment or original baseline for this purpose (see, e.g.,
Exs. 26; 15: 25, 50, 78, 108, 110, 111, 113, 146, 154, 163, 181, 188,
218, 233, 262, 281, 295, 308, 348, 354, 402, 405), although a few
commenters proposed using audiometric zero (see, e.g., Ex. 15: 395).
One commenter proposed that the reviewing professional should determine
the appropriate baseline on a case-by-case basis (Ex. 15: 175), and
another proposed that an audiologist should determine when a change in
baseline audiograms is warranted (Ex. 15: 203). Some commenters
supported adjusting the employee's baseline audiogram when a recordable
hearing loss case has been identified (see, e.g., Exs. 26; 15: 25, 108,
111, 146, 163, 290, 354, 405, 407).

OSHA agrees with those commenters who argued that the preemployment
or original baseline should be used as the benchmark from which to
determine recordable hearing loss. Using the preemployment or original
baseline automatically corrects for any hearing loss that may have
occurred before the worker was employed with his or her current
employer and will prevent the recording of cases of nonoccupational
hearing loss. This policy is also consistent with OSHA's Occupational
Noise standard and therefore increases the simplicity of the recording
system.

OSHA also agrees that an employee's baseline audiogram should be
adjusted if that employee experiences a recordable hearing loss.
Revising the baseline by substituting the revised audiogram for the
original audiogram after an STS has occurred will avoid a second or
third recording of the same STS. On the other hand, recording hearing
loss in a given worker only once would overlook the additional hearing
loss that may occur, either in the same or the other ear, and would not
be consistent with the definition of a "new" case in Section 1904.6
of this rule, which requires employers to evaluate any "new" case
that results from exposure in the workplace for recordability.
Subsequent STS findings, i.e., further 10-dB shifts in hearing level,
are more serious events than the first STS, because of the nonlinearity
of the dB rating system and the progressive severity of increasing
hearing loss. A second or third STS in a given worker is therefore also
treated under the recordkeeping system as a recordable illness on the
OSHA 300 Log. The final rule makes this clear by requiring the
employee's audiogram to be compared to the preemployment baseline
audiogram when the worker has not experienced a recordable hearing
loss, and to the audiogram reflecting the most recent recorded hearing
loss if the worker has experienced a prior recorded hearing loss case.

Correction for Aging

In its proposal, OSHA included provisions allowing the employer to
adjust the results of audiograms for presbycusis (age-related hearing
loss), and asked for comment on whether an age correction is
appropriate. The vast majority of commenters agreed that it was (see,
e.g., Exs. 26; 42; 15: 39, 45, 84, 113, 137, 163, 175, 201, 203, 262,
278, 281, 283, 331, 347, 348, 396, 405). As the Westinghouse Hanford
Company commented, "[t]he adjusting for presbycusis is appropriate as
the deterioration of the hearing related to age is an important factor
in determining the amount of hearing loss related to workplace
hazards" (Ex. 15: 108). Julia Royster, Ph.D. CC-A/SLP, agreed with
this view, stating that "Age-related hearing loss is inevitable. There
are individual differences in the rate of age-related hearing change
and the amount of hearing loss eventually shown due to presbycusis.
However, most people will eventually develop age-related hearing
changes equivalent to one or more OSHA STSs. Therefore, presbycusis
corrections are necessary to avoid attributing age-related hearing
change to occupational causes" (Ex. 26, Appendix C).

However, some commenters did not agree that the use of age
corrections was appropriate (see, e.g., Exs. 15: 50, 110, 188, 233,
407). For example, Occupational Audiologists (Ex. 15: 50) pointed out
that "[w]hen the tables [in 29 CFR 1910.95] are applied they ignore
any hearing loss that may be present as a result of medical pathology
or noise exposure prior to the baseline hearing test," and therefore
the "use of the presbycusis tables hides significant changes in
hearing thus delaying the STS required procedures of follow-up,
notification, fitting/re-fitting, educating and requiring the wearing
of hearing protection for some individuals." Similarly, John P. Barry
(Ex. 15: 110), commented:

At the 4000 Hz test frequency where occupational hearing loss
first occurs, application of the presbycusis correction may
significantly reduce the noted threshold shift relative to the
employee's baseline audiogram. However, the changes at 2000 and 3000
Hz often are equal to or less than the presbycusis corrections. When
these corrections are applied to actual audiometric data, they mask
the effects of occupational noise and hinder early detection of
noise-induced hearing loss. While hearing loss due to aging
(presbycusis) and hearing loss due to the non occupational
environment (sociocusis) may account for some of hearing loss noted
in serial audiograms, there is no scientifically valid way to
correct the data for non occupational hearing loss. * * * It is
inappropriate use of statistics to apply median values from one
population on a different population when no foundation has been
developed to justify such manipulation of data.

OSHA recognizes that using the correction for presbycusis when
interpreting audiogram results is controversial among experts in the
field of audiology and that NIOSH has developed a new criteria document
on occupational noise exposure ("Criteria for a Recommended Standard;
Occupational Noise Exposure, Revised Criteria, 1998; U.S. Department of
Health and Human Services, Centers for Disease Control and Prevention,
National Institute for Occupational Safety and Health; June 1998) which
at present does not recommend applying presbycusis correction values to
actual employee audiometric data. However, since the Occupational Noise
standard itself permits employers to adjust the interpretation of
audiograms for the effects of aging, it would be inconsistent and
administratively complex to prohibit this practice in the recordkeeping
rule. Accordingly, § 1904.10(b)(3) allows the employer to adjust for
aging when determining the recordability of hearing loss. The
adjustment is made using Tables F-1 or F-2, as appropriate (table F-1
applies to men and F-2 applies to women), in Appendix F of 29 CFR
1910.95. However, use of the correction for aging is not mandatory,
just as it is not mandatory in the Noise standard itself.

Persistence of Hearing Loss

Yet another issue surrounding the recording of hearing loss
involves the timing of the recording of a case on the OSHA forms when
an audiogram has been performed on an employee. The issue is whether
the results of an audiogram should be recorded within the interval for
recording all cases, or whether the audiogram should be verified with a
retest before recording is required. The proposed rule would have
required the recording of hearing loss cases within 7 calendar days of
the first audiogram, but then would have permitted employers to remove,
or line out, a hearing loss case on the Log if a second audiogram taken
on that employee within 30 days failed to show that the STS was
persistent. Several commenters supported immediate recording with the
30 day retest provision (see, e.g., Exs. 15: 295, 350, 394, 407). The
Building and Construction Trades Department of the AFL-CIO (Ex. 15:
394) noted that if a retest was not performed the case would never
be recorded:

We support OSHA, however, on requiring cases to be recorded and
then lined out later if the loss does not persist. In construction,
where a worker may never get a follow-up test because they have
moved to a different worksite, the case needs to be recorded and
presumed work-related. For construction workers that is a very good
presumption to make. These changes should lead to more accurate
reporting of hearing loss among construction workers.

Other commenters, however, did not agree with OSHA's proposal and
believed the shifts should be confirmed before recording on the Log is
required (see, e.g., Exs. 26; 42; 15: 50, 84, 175, 181, 188, 201, 203,
331). Impact Health Services (Ex. 15: 175) expressed its opinion that

The new hearing loss criterion should require recording of only
confirmed work-related shifts in hearing. * * * There is no question
that it is in the best interest of the hearing conservation program
to identify shifts in hearing while they are still temporary so that
follow-up action can be taken immediately to prevent permanent
hearing loss. * * * However, requiring companies to record all
shifts (both temporary and persistent) within six (proposed seven)
days may have an unintended punitive effect. Companies are usually
hesitant to record any incidents on Form 200 (proposed Form 300),
even if lining-out the event at a later date is an option.
Therefore, disallowing the OSHA 30-day retest for recording purposes
may have a negative impact on programs which are designed to prevent
hearing loss. By requiring recording of all shifts within seven
days, companies may actually discontinue programs of conducting
annual testing during the work shift, due to a reluctance to
identify (and record) temporary threshold shift.

To address the problem identified by the Building and Construction
Trades Department of the AFL-CIO, Impact Health Services recommended
that "[i]f a follow-up audiogram is not administered within 30 days of
determination, or if the follow-up audiogram confirms the shift, then
the shift is considered persistent and if determined to be work
related, must be recorded on Form 300" (Ex. 15: 175). The American
Association of Occupational Health Nurses (Ex. 15: 181) noted that it
"would require less paperwork to record the hearing loss after
confirmation by a re-test in thirty days, rather that recording the
initial shift and then having to 'line out' the entry if the re-test
was not indicative of any hearing loss."

This urgency [as reflected in the proposal's provision requiring
recording within 7 days] in recording unconfirmed shifts does not
appear justified and creates additional burdens for the employer.
The coalition recommends the following more efficient and suitably
protective approach:

-- Only confirmed (i.e., persistent) work-related STSs are to be
recorded on Form 300, unless a follow-up audiogram is not
administered.

-- If a follow-up audiogram is not administered within 30 days of the
initial determination of STS, or if the follow-up audiogram confirms
the STS, then the shift is considered persistent, and if determined
to be work-related, must be recorded on Form 300. * * *

-- If a follow-up audiogram given within 30 days of the initial
determination of the STS does not confirm the STS, nothing is to be
recorded on Form 300.

The Coalition also recommended that employers be allowed to remove,
or line-out, recorded hearing losses that are not confirmed by
subsequent retesting, or are found not to be work-related, within 15
months of the initial STS identification, at the discretion of the
reviewing professional. Such a provision would allow employers to
remove cases if the next annual audiogram showed an improvement in
hearing (Exs. 26; 42).

Several commenters discussed the length of time OSHA should allow
between the audiogram on which the STS was first detected and the
confirmatory retest. The International Dairy Food Association suggested
that allowing only a 30-day period "may not be feasible in many
situations where mobile van testing is utilized. * * * Thirty days are
easily consumed during the compiling, mailing, interpreting, mailing,
evaluation process" (Ex. 15: 203). The Association recommended instead
that "OSHA increase the current requirement of 30 days to 45 days to
allow employers and employees to obtain a re-test following an annual
audiogram" (Ex. 15: 403). For the same reasons, the Can Manufacturers
Institute recommended that retests be permitted within 90 days of the
original test, noting that "[t]here is no magic regarding the current
30 day span" (Ex. 15: 331). Industrial Health Inc. commented that
"there's no rush" to retest and stated its preference for a time
lapse longer than 30 days "[i]n order to allow temporary [hearing
loss] effects to subside" (Ex. 15: 84). NIOSH (Ex. 15: 407) proposed
that a confirmatory retest be permitted at any time provided that the
retest was preceded by a 14-hour period of quiet.

After a review of the record on this point, OSHA has decided to
require that any retest the employer chooses to perform be conducted
within 30 days. Accordingly, in the final rule, at paragraph
1904.10(b)(4), employers are permitted, if they choose, to retest the
employee to confirm or disprove that an STS reflected on the first
audiogram was attributable to a cold or some other extraneous factor
and was not persistent. If the employer elects to retest, the employer
need not record the case until the retest is completed. If the retest
confirms the hearing loss results, the case must be recorded within 7
calendar days. If the retest refutes the original test, the case is not
recordable, and the employer does not have to take further action for
OSHA recordkeeping purposes. The 30 day limit in the final
recordkeeping rule is consistent with the 30 day retest provision of
§ 1910.95(g)(5)(ii), which allows the employer to obtain a retest
within 30 days and consider the results of the retest as the annual
audiogram if the STS recorded on the first test is determined not to
persist.

OSHA believes that the 30 day retest option allows the employer to
exclude false positive results and temporary threshold shifts from the
data while ensuring the timely and appropriate recording of true
positive results. Adding language to the final recordkeeping rule to
specify different procedures, depending on whether the employer chooses
to conduct a re-test within 30 days, adds some complexity to the final
rule, but OSHA finds that this added complexity is appropriate because
it will reduce burden for some employers and improve the accuracy of
the hearing loss data.

Work-Relationship

One of the greatest sources of controversy in the record concerning
OSHA's proposed criterion for recording hearing loss relates to the
presumption of work-relationship in cases where an employee is exposed
to an 8-hour time-weighted average sound level of noise equaling or
exceeding 85 dB(A) (61 FR 4064). One commenter supported the
recordkeeping proposal's approach on this matter. NIOSH (Ex. 15: 407)
recommended that work-relationship be presumed "if an employee is
exposed to an 8-hour time-weighted sound level of noise equaling or
exceeding 85 dB(A) or to peak sound levels equaling or exceeding 115
dB(A) regardless of brevity or infrequency." Several commenters
advocated presuming work-relatedness if the employee experienced
occupational exposures to 85 dB unless medical evidence showed that the
hearing loss was not related to work (see, e.g., Exs. 15: 39, 50, 146,
171, 188). For example, BF Goodrich (Ex. 15: 146) asked that "[O]SHA
give employers the opportunity to refute the work relationship for
employees found to have other than noise-induced hearing loss. If
the employee is examined by an otolaryngologist or other qualified
health professional and found to have a medical condition that causes
hearing loss, the case should not be recordable."

Several commenters objected to the proposed presumption of work-relationship
(see, e.g., Exs.15: 201, 263, 283, 289, 305, 318, 334,
390). The National Association of Manufacturers commented that "There
is no justification for presuming that hearing loss is work-related
simply because an employee is exposed to an 8-hour time weighted
average sound level of noise of 85 dB(A) or higher, even if it were a
daily exposure and particularly where it could be as infrequent as once
per year" (Ex. 15: 305). Many commenters agreed with Mississippi
Power, which wrote "[t]he presumption of work relationship does not
consider other potentially significant noise exposures such as noisy
hobbies, or other noisy activities not associated with occupational
noise exposures" (Ex. 15: 263). Deere & Company argued that "OSHA is
not taking into account the noise-reducing effect of an effective
hearing conservation program nor does it take into account the often
significant noise exposure that many employees have away from the
workplace " (Ex. 15: 283).

There are numerous suggestions in the record on how best to deal
with the presumption of work-relationship. Impact Health Services Inc.,
and others suggested that a case be considered work-related "when in
the judgement of the supervising audiologist or physician, the shift is
due in full or in part to excessive noise exposure in the workplace"
(Ex. 15: 175). Akzo Nobel Chemicals proposed that work-relationship be
presumed when "there is no other reasonable non-work related
explanation" (Ex. 37), and the National Grain and Feed Association
suggested "that if an employer has an active and an enforceable
hearing conservation program in place, the presumption should be that
any hearing loss experienced by an employee is not work related unless
it can be shown to be otherwise" (Ex. 15: 119). A number of commenters
agreed with the comment of the Edison Electric Group that "OSHA should
also establish a criteria of exposure to noise at or above the 85 dB(a)
TWA action level of 30 or more days per year before the case is
recordable" because "[a] single day's exposure at or below the PEL
will not cause hearing loss" (Ex. 15: 401), and NIOSH proposed that
work-relationship be presumed "if an employee is exposed to an 8-hour
time-weighted sound level of noise equaling or exceeding 85 dB(A) or to
peak sound levels equaling or exceeding 115 dB(A) regardless of brevity
or infrequency" (Ex. 15: 407).

In the final rule, OSHA has continued to rely on a presumption of
work-relationship for workers who are exposed to noise at or above the
action levels specified in the Occupational Noise standard (29 CFR
1910.95). In line with the overall concept of work relationship adopted
in this final rule for all conditions, an injury or illness is
considered work related if it occurs in the work environment. For
workers who are exposed to the noise levels that require medical
surveillance under § 1910.95 (an 8-hour time-weighted average of 85
dB(A) or greater, or a total noise dose of 50 percent), it is highly
likely that workplace noise is the cause of or, at a minimum, has
contributed to the observed STS. It is not necessary for the workplace
to be the sole cause, or even the predominant cause, of the hearing
loss in order for it to be work-related. Because the final
recordkeeping rule relies upon the coverage of the Occupational Noise
standard, it is also not necessary for OSHA to include a minimum time
of exposure provision. The Occupational Noise standard does not require
a baseline audiogram to be taken for up to six months after the
employee is first exposed to noise in the workplace, and the next
annual audiogram would not be taken until a year after that. For any
worker to have an applicable change in audiogram results under the
Occupational Noise standard, the worker would have been exposed to
levels of noise exceeding 85 dB(A) for at least a year, and possibly
even for 18 months.

In addition, the provisions allowing for review by a physician or
other licensed health care professional allow for the exclusion of
hearing loss cases that are not caused by noise exposure, such as off
the job traumatic injury to the ear, infections, and the like. OSHA
notes that this presumption is consistent with a similar presumption in
OSHA's Occupational Noise standard (in both cases, an employer is
permitted to rebut this presumption if he or she suspects that the
hearing loss shown on an employer's audiogram in fact has a medical
etiology and this is confirmed by a physician or other licensed health
care professional).

Miscellaneous Issues

Other issues addressed by commenters to the rulemaking record on
OSHA's proposed criterion for recording hearing loss included whether
OSHA should treat hearing levels for each ear separately for recording
purposes. Impact Health Services, Inc. (Ex. 15: 175) recommended that
proposed Appendix B specify that shifts in hearing be calculated
separately for each ear:

Because an individual's left and right ears may be affected
differently by noise or other occupational injury, it is important
that Appendix B specifies that shifts in hearing are to be
calculated separately for each ear.

Arguing along similar lines, the Chevron Companies raised the issue
of revising baselines for both ears when a standard threshold shift is
recorded in only one ear. They commented:

The proposed rule discusses an average shift in one or both ears
and establishing a new or revised baseline for future tests to be
evaluated against. In discussing the new or revised baseline however
the proposed rule does not give guidance on revision when only one
ear meets the revision criteria (15 dB or 25 dB or whatever the
final rule states). Are the baselines for both ears revised or only
the ear meeting the criteria? This issue should be clearly addressed
in the final rule. Usually noise induced hearing loss is a
symmetrical event so it would be reasonable to revise the baselines
for both ears. If the baselines are to be revised individually one
could anticipate more hearing losses being recorded than if they are
revised in unison. Therefore, for Hearing Conservation Program
statistics to be meaningful and comparable, baseline revision must
be handled the same across industries (Ex. 15: 343).

Shifts in hearing must be calculated separately for each ear, in
accordance with the requirements of § 1910.95. However, if a single
audiogram reflects a loss of hearing in both ears, only one hearing
loss case must be entered into the records. The issue of revising
baseline audiograms to evaluate the extent of future hearing loss
pertains to a hearing loss case that has been entered on the Log. If a
single-ear STS loss has been recorded on the Log, then the baseline
audiogram should be adjusted for that ear, and that ear only. If an STS
affecting both ears has been recorded on the Log, then the baseline
audiogram may be revised and applied to both ears. This means that
there should be no cases where the baseline audiogram has been adjusted
and the case has not been recorded on the Log.

The Medical Educational Development Institute (Ex. 15: 25) made
several recommendations for changing OSHA's noise standard, 29 CFR
1910.95, to add specific steps to be taken when a 10 dB STS occurs,
such as employee interviews, reevaluations with medical personnel,
physician referral, labeling of revised baseline audiograms, and
reassignment to quieter work for workers with a second or subsequent
STS. These are interesting recommendations, but they address issues
that are beyond the scope of this rulemaking. This rulemaking is
concerned only with the Part 1904 requirements for recording occupational
hearing loss on the OSHA 300 Log, and does not affect any provision of
the OSHA Occupational Noise standard.

Phillips Petroleum (Ex. 15: 354) raised another miscellaneous issue
when it suggested that OSHA phase in the recording of audiometric tests
if a more protective definition of hearing loss was adopted in the
final rule:

[i]f OSHA insists on the recording of hearing loss at the 15 dB,
it would artificially inflate the number of recordable hearing-loss
cases and have a similar effect as that of the severity issue. We
recommend that if the recordability bar is lowered from 25 dB], OSHA
allow a transition period where a 15 dB shift is listed on the log,
but is not counted in the recordable total. This should continue for
a transition period of three years to allow facilities to identify
all employees affected. Any employees who were not identified during
the transition period would become recordables with a 15 dB hearing
loss after the transition period.

OSHA does not believe that a transition period is needed for the
recording of occupational hearing loss or any other type of injury or
illness included in the records. Adding such a provision would add
unnecessary complexity to the rule, and would also create an additional
change in the data that would make it difficult to compare data between
the two years at the end of the transition. OSHA finds that it is
better to implement the recordkeeping changes as a single event and
reduce the impacts on the data in future years.

As noted previously, OSHA is not making any changes to its noise
standards in this Part 1904 rulemaking, and thus no additional
protections are being provided in this final rule.

Section 1904.11 of the final rule being published today addresses
the recording of tuberculosis (TB) infections that may occur to workers
occupationally exposed to TB. TB is a major health concern, and nearly
one-third of the world's population may be infected with the TB
bacterium at the present time. There are two general stages of TB,
tuberculosis infection and active tuberculosis disease. Individuals
with tuberculosis infection and no active disease are not infectious;
tuberculosis infections are asymptomatic and are only detected by a
positive response to a tuberculin skin test. Workers in many settings
are at risk of contracting TB infection from their clients or patients,
and some workers are at greatly increased risk, such as workers exposed
to TB patients in health care settings. Outbreaks have also occurred in
a variety of workplaces, including hospitals, prisons, homeless
shelters, nursing homes, and manufacturing facilities (62 FR 54159).

The text of § 1904.11 of the final rule states:

(a) Basic requirement. If any of your employees has been
occupationally exposed to anyone with a known case of active
tuberculosis (TB), and that employee subsequently develops a
tuberculosis infection, as evidenced by a positive skin test or
diagnosis by a physician or other licensed health care professional,
you must record the case on the OSHA 300 Log by checking the
"respiratory condition" column.

(b) Implementation.

(1) Do I have to record, on the Log, a positive TB skin test result
obtained at a pre-employment physical?

No, because the employee was not occupationally exposed to a known
case of active tuberculosis in your workplace.

(2) May I line-out or erase a recorded TB case if I obtain evidence
that the case was not caused by occupational exposure?

Yes. you may line-out or erase the case from the Log under the
following circumstances:

(i) The worker is living in a household with a person who has been
diagnosed with active TB;

(ii) The Public Health Department has identified the worker as a
contact of an individual with a case of active TB unrelated to the
workplace; or

(iii) A medical investigation shows that the employee's infection
was caused by exposure to TB away from work, or proves that the case
was not related to the workplace TB exposure.

The Proposal

The proposed rule included criteria for the recording of TB cases
in proposed Appendix B. In that appendix, OSHA proposed to require the
recording of cases of TB infection or disease at the time an employee
first had a positive tuberculin skin test, except in those cases where
the skin test result occurred before the employee was assigned to work
with patients or clients. The proposal stated that cases of TB disease
or TB infection would be presumed to be work-related if they occurred
in an employee employed in one of the following industries:
correctional facilities, health care facilities, homeless shelters,
long-term care facilities for the elderly, and drug treatment centers.
In other words, the proposal contained a "special industries"
presumption for those industries known to have higher rates of
occupational TB transmission. OSHA proposed to allow employers to rebut
the presumption of work-relatedness if they could provide evidence that
the employee had been exposed to active TB outside the work
environment. Examples of such evidence would have included (1) the
employee was living in a household with a person who had been diagnosed
with active TB, or (2) the Public Health Department had identified the
employee as a contact of an individual with a case of active TB. For
employees working in industries other than the "special" industries,
OSHA proposed that a positive skin test result be considered work-related
when the employee had been exposed to a person within the work
environment who was known to have TB disease. Under the proposal, an
employee exhibiting a positive skin test and working in industries
other than those listed would otherwise not be presumed to have
acquired the infection in the work environment (61 FR 4041). As noted
in the proposal, these recording criteria for TB were consistent with
those published previously in OSHA directives to the field (February
26, 1993 memo to Regional Administrators). The final rule permits
employers to rebut the presumption of work-relatedness in cases of TB
infection among employees but does not rely on the "special
industries" approach taken by OSHA in the proposal, for reasons
explained below.

We disagree with a positive skin test reaction as the criterion
for recording a TB case. Such tests are only indicative of a past
exposure, not necessarily an illness or a condition. OSHA should
allow diagnosing medical professionals to use their professional
judgement to confirm active TB cases and restrict recordability to
those cases (Ex. 15: 146).

Kaiser Permanente (Ex. 15: 200) argued:

The presumption that an initial positive skin test result or
diagnosed tuberculosis in a health care employee is occupationally
based is not warranted. While there have been outbreaks in health
care facilities documented in the literature, and while skin test
conversion does occur in health care workers and may in given cases be
occupationally related, the Kaiser Permanente experience has not
been characterized by outbreaks or significant rates of skin test
conversion. Diagnosed cases of tuberculosis among Kaiser Permanente
health care workers are extremely rare.

OSHA views the situation differently. A positive tuberculin skin
test indicates that the employee has been exposed to Mycobacterium
tuberculosis and has been infected with the bacterium. Although the
worker may or may not have active tuberculosis disease, the worker has
become infected. Otherwise, his or her body would not have formed
antibodies against these pathogens. (OSHA is aware that, in rare
situations, a positive skin test result may indicate a prior
inoculation against TB rather than an infection.)

OSHA believes that TB infection is a significant change in the
health status of an individual, and, if occupational in origin, is
precisely the type of illness Congress envisioned including in the OSHA
injury and illness statistics. Contracting a TB infection from a
patient, client, detainee, or other person in the workplace would cause
serious concern, in OSHA's view, in any reasonable person. Once a
worker has contracted the TB infection, he or she will harbor the
infection for life. At some time in the future, the infection can
progress to become active disease, with pulmonary infiltration,
cavitation, and fibrosis, and may lead to permanent lung damage and
death. An employee harboring TB infection is particularly likely to
develop the full-blown disease if he or she must undergo chemotherapy,
contracts another disease, or experiences poor health. According to
OSHA's proposed TB rule (62 FR 54159), approximately 10% of all TB
infections progress at some point to active disease, and it is not
possible to predict in advance which individuals will do so.

OSHA also believes that it is important to require employers to
record TB cases when an employee experiences a positive skin test
because doing so will create more timely and complete statistics. If,
for example, OSHA were to require recording only when the worker
develops active TB, many cases that were in fact occupational in origin
would go unrecorded. In such cases, if the worker had retired or moved
on to other employment, the employer would generally not know that the
employee had contracted active TB disease, and the case would never be
included in the Nation's occupational injury and illness statistics and
important information would be lost. Thus, requiring the recording of a
case at the infection stage will create more accurate, complete and
useful statistics, one of the major goals of this rulemaking.

Several commenters suggested that TB should not be recorded at all
because, in their view, acquiring TB infection is not within the
control of the employer and is not amenable to control by an employer's
safety and health program (see, e.g., Exs. 15: 316, 348, 414, 423). For
example, Raytheon Engineers & Constructors (Ex. 15: 414) argued that TB
infection and disease should not be recorded because it "is not due to
a condition of the work environment under the control of the
employer." Dupont argued along similar lines:

It does not make sense to record tuberculosis cases where an
infectious worker infects co-workers. That has nothing to do with
job activity or with the workplace except as an accidental exposure.
The same type of thinking could apply to flu symptoms, "colds",
conjunctivitis, etc., where lack of personal hygiene or a strong
"germ" migrated through the workplace. If the exposure is not part
of the job activity, none of the cases mentioned, including
tuberculosis, should be recorded (Ex. 15: 348).

As discussed elsewhere in this document (see the Legal Authority
section above), Congress did not intend OSHA's recordkeeping system
only to capture conditions over which the employer has complete control
or the ability to prevent the condition. The Act thus supports a
presumption of work-relatedness for illnesses resulting from exposure
in the workplace, and the OSHA recordkeeping system has always
reflected this position (although a few specific exceptions to that
presumption are permitted, including an exception for common colds and
flu). In accordance with that presumption, when an employee is exposed
to an infectious agent in the workplace, such as TB, chicken pox, etc.,
either by a co-worker, client, patient, or any other person, and the
employee becomes ill, workplace conditions have either caused or
contributed to the illness and it is therefore work-related. Since, as
discussed above, TB infection is clearly a serious condition, it is
non-minor and must be recorded.

Employee-to-Employee Transmission

Two commenters argued that transmission from employee to employee
should not be considered work-related (Exs. 15: 39, 348). The RR
Donnelley & Sons Company (Ex. 15: 39) pointed out that an employer
"may never know that a fellow employee has tuberculosis. To record
personal transmission from one employee to another goes beyond the
scope of work relatedness." Other commenters agreed with OSHA that, at
least under certain circumstances, employee-to-employee transmission
should be considered work-related (see, e.g., Exs. 15: 78, 218, 361,
398, 407). For example, Alliant Techsystems (Ex. 15: 78) stated that
"[i]f a worker with infectious tuberculosis disease infected their co-worker,
the co-workers' infection/disease would be recordable."

Again, as discussed above, OSHA believes, under the positional
theory of causality, that non-minor illnesses resulting from an
exposure in the work environment are work-related and therefore
recordable unless a specific exemption to the presumption applies.
Infection from exposure to another employee at work is no different, in
terms of the geographic presumption, from infection resulting from
exposure to a client, patient, or any other person who is present in
the workplace. The transmission of TB infection from one employee to
another person at work, including a co-worker, clearly is non-minor and
is squarely within the presumption.

Special Industry Presumptions

Many of the commenters supported OSHA's proposed approach of
assuming work-relatedness for TB cases if the infection occurred in
workers employed in certain special industries (see, e.g., Exs. 24, 15:
78, 345, 376, 407). Other commenters suggested that OSHA abandon the
proposed special industry presumption (see, e.g., Exs. 15: 197, 200,
225, 259, 279, 302, 341, 431, 436). In the proposed rule, OSHA proposed
different work-relatedness criteria for different work environments,
i.e., in industries in which published reports of TB outbreaks were
available from the Centers for Disease Control and Prevention (CDC), a
special presumption would prevail, while in industries in which
occupational transmission had not been documented it would not.

Kaiser Permanente commented that the CDC "Guidelines for
Preventing the Transmission of Mycobacterium Tuberculosis in Health-Care
Facilities establish facility risk levels for occupational
transmission of tuberculosis based upon assessment of a range of
relevant criteria such as job duties, incidence of TB patients treated,
and community TB rates" and urged OSHA to follow these in the final
rule (Ex. 15: 200).

Two commenters objected to the inclusion of nursing homes in the
list of industries in which the special industry presumption would apply (Exs.
15: 259, 341). For example, the American Health Care Association (AHCA)
suggested:

[i]t should not be presumed that exposure is work-related in all
long term care facilities for the elderly. Depending upon the
facility and/or its location, the incidence of TB infection/disease
in the facility may be less than that of the general public. The
Centers for Disease Control and Prevention recognizes that even
within certain settings, there are varying levels of risk (minimal
to high). TB linkage to the facility should be based on the level of
risk using the CDC assessment system, with work relatedness assigned
to facilities within the moderate to high risk classification (Ex.
15: 341).

Two commenters suggested OSHA add more industries to the proposed
list of industries to which the special industry presumption would
apply. The American Nurses Association (ANA) told the Agency that
"There should be no question on the inclusion of the home health arena
under the rubric of health care facilities. The risk of transmission
exists in all health care work sites including home health sites and
must not be limited to traditional health care facilities' (Ex. 15:
376). Alliant Techsystems (Ex. 15: 78) suggested adding "Industries
that causes exposure outside the United States such as the airline
sector."

Some commenters argued that recording should be limited only to TB
cases occurring in workers in specific industries, i.e., that no case
of TB in other industries, no matter how transmitted or when diagnosed,
should be recordable (see, e.g., Exs. 15: 351, 378, 396). Westinghouse
Electric Corporation recommended that "Tuberculosis exposure or
disease cases outside of listed industries where cases would be
prevalent (such as health care facilities, long-term care facilities,
etc.) should not be recordable as an occupational illness. The logical
source of exposure would be non work-related and outside the premises
of the employer's establishment." Likewise, the Air Transport
Association (Ex. 15: 378) suggested that TB recording "[s]hould be
limited to medical work environments rather than general industry. The
administrative burden far exceeds the expected benefits."

OSHA is aware that the relative risk of TB, and of all occupational
injuries and illnesses, varies widely from industry to industry and
from occupation to occupation. However, OSHA does not consider this
circumstance relevant for recordkeeping purposes. The fact that
ironworkers experience a higher incidence of falls from elevation than
do carpenters does not mean that carpenters' injuries from such falls
should not be recorded. Congress clearly intended information such as
this to be used by individual employers and to be captured in the
national statistical program. Again, because TB infection is a
significant illness wherever in the workplace it occurs, and because no
exemption applies, it must be recorded in all covered workplaces.
Accordingly, in the final rule being published today, TB cases are
recordable without regard to the relative risk present in a given
industry, providing only that the employee with the infection has been
occupationally exposed to someone with a known case of active
tuberculosis. Employers may rebut the presumption only if a medical
investigation or other special circumstances reveal that the case is
not work-related.

In the final rule, OSHA has not adopted the "special industries"
presumption, for several reasons. First, doing so would be inconsistent
with the approach taken by the Agency in other parts of the rule, i.e.,
specific industries have not been singled out for special treatment
elsewhere. Second, a "special industries" presumption is not needed
because the approach OSHA has taken in this section will provide
employers with better ways of rebutting work-relatedness when that is
appropriate. Finally, the special industries approach is not
sufficiently accurate or well enough targeted to achieve the intended
goal. Many cases of occupationally transmitted TB occur among employees
in industries other than the "special industries," and evidence shows
that the risk of TB infection varies greatly among facilities in the
special industries.

Workers are exposed to tuberculosis in many places other than
the work site: it would be unduly burdensome to require employers to
provide evidence that the employee has had non-work exposure. Since
the employee is in the best position to retrace his or her
activities, he or she should be required to provide evidence to
establish work-relatedness (Ex. 15: 431).

OSHA does not agree that the employee is in a better position than
the employer to know whether an employee has been exposed to TB at
work. For example, the worker is not as likely to know whether a co-worker, patient, client, or other work contact has an active TB case.
To determine whether exposure to an active case of TB has occurred at
work, the employer may interview the employee to obtain additional
information, or initiate a medical investigation of the case, but it
would be inappropriate to place the burden of providing evidence of
work-relationship on the employee.

The American Ambulance Association (Ex. 15: 226) did not support
the proposed approach of reporting an employee's positive tuberculin
skin test reaction "unless there has [also] been documentation of a
work-related exposure." The American Network of Community Options and
Resources (ANCOR) argued "ANCOR strongly opposes the inclusion of
tuberculosis unless the infection is known to have been caused at work
due to a known, active carrier" (Ex. 15: 393). The American
Association of Occupational Health Nurses (AAOHN) proposed that the
criteria for recording TB infection or illness be "[a]n employee tests
positive for tuberculosis infection after being exposed to a person
within the work environment known to have tuberculosis disease and the
positive test results are determined to be caused by the person in the
workplace with tuberculosis disease" (Ex. 15: 188).

Several commenters suggested that the first case of TB occurring in
the workplace should not be recordable (see, e.g., Exs. 15: 218, 361,
398). In two separate comments, the Association for Professionals in
Infection Control (APIC) recommended:

[a]s an acceptable rebuttal to the presumption of work
relationship when an employee is found to be infected with
tuberculosis or to have active disease. The employer is able to
demonstrate that no other employee with similar duties and patient
assignments as the infected employee was found to have tuberculosis
infection or active disease (Exs. 15: 361, 398).

In addition, Bell Atlantic (Ex. 15: 218) proposed that public
health agencies be charged with determining the work-relationship of
cases of TB in the workplace. Bell Atlantic's comments to the
rulemaking record were as follows:

Bell Atlantic does not agree that tuberculosis cases should be
inherently reported. The first identified incidence of tuberculosis
in an employee group probably was not contracted in the workplace.
However, if Public Health Officials deem it necessary to require TB
testing in the facility as a preventive measure, and new cases are
found, these may be recordable. The criteria here is one of public
health, and where the disease initiated. The Public Health Agencies
would be charged with investigation of family members, friends, and
the community away from work.

A number of commenters misunderstood the proposal as allowing the
geographic presumption of work-relationship only to be rebutted in
certain "high risk" industries. For example, Alcoa commented that
"OSHA seems to conclude * * * that if someone in your workforce has TB
then each person in the workplace who tests positive is now considered
as having work-related TB due to the incidental exposure potential"
(Ex. 15: 65). ALCOA suggested that the final rule allow the geographic
presumption of work-relationship to be rebutted for "all other
industries."

OSHA agrees that a case of TB should be recorded only when an
employee has been exposed to TB in the workplace (i.e., that the
positional theory of causation applies to these cases just as it does
to all others). OSHA has added an additional recording criterion in
this case: for a TB case occurring in an employee to be recordable,
that employee must have been exposed at work to someone with a known
case of active tuberculosis. The language of the final rule addresses
these concerns: "If any of your employees has been occupationally
exposed to anyone with a known case of active tuberculosis, * * *"
Under the final rule, if a worker reports a case of TB but the worker
has not been exposed to an active case of the disease at work, the case
is not recordable. However, OSHA sees no need for the employer to
document such workplace exposure, or for the Agency to require a higher
level of proof that workplace exposure has occurred in these compared
with other cases. Further, OSHA knows of no justification for excluding
cases simply because they are the first or only case discovered in the
workplace. If a worker contracted the disease from contact with a co-worker, patient, client, customer or other work contact, the case would
be work-related, even though it was the first case detected. Many work-related injury and illness cases would be excluded from the
recordkeeping system if cases were only considered to be work-related
when they occurred in clusters or epidemics. This was clearly not
Congress's intent.

The final rule's criteria for recording TB cases include three
provisions designed to help employers rule out cases where occupational
exposure is not the cause of the infection in the employee (i.e., where
the infection was caused by exposure outside the work environment). An
employer is not required to record a case involving an employee who has
a positive skin test and who is exposed at work if (1) the worker is
living in a household with a person who has been diagnosed with active
TB, (2) the Public Health Department has identified the worker as a
contact of a case of active TB unrelated to the workplace, or (3) a
medical investigation shows that the employee's infection was caused by
exposure to TB away from work or proves that the case was not related
to the workplace TB exposure.

The final rule thus envisions a special role for public health
departments that may investigate TB outbreaks but does not permit
employers to wait to record a case until a public health department
confirms the work-relatedness of the case. In addition, the final
rule's provisions for excluding cases apply in all industries covered
by the recordkeeping rule, just as the recording requirements apply to
all industries. The final rule thus does not include the "special
industries" approach of the proposal. As discussed above, the Agency
has rejected this proposed approach because it would not have been
consistent with the approach OSHA has taken elsewhere in the rule,
which is not industry-specific; it is not necessary to attain the
intended goal; and it would not, in any case, have achieved that goal
with the appropriate degree of accuracy or specificity.

A few commenters stressed that employers should not be required to
record cases where the employee was infected with TB before employment
(see, e.g., Exs. 15: 65, 407, 414). For example, Alcoa (Ex. 15: 65)
proposed that employers not be required to consider as work-related any
case where "the employee has previously had a positive PPD [Purified
Protein Derivative] test result." In response to this suggestion, OSHA
has added an implementation question to the final rule to make sure
that employers understand that pre-employment skin test results for TB
are not work-related and do not have to be recorded. These results are
not considered work-related for the purposes of the current employer's
Log because the test result cannot be the result of an event or
exposure in the current employer's work environment.

NIOSH proposed to expand the recording criteria for TB infection or
disease to include the criterion that "regardless of the industry or
source of infection, a case of active TB disease is presumed to be
work-related if the affected employee has silicosis attributable to
crystalline silica exposure in the employer's establishment" (Ex. 15:
407). OSHA has chosen not to include this criterion in the final rule
because in NIOSH's example the case would previously have been entered
into the records as a case of silicosis. Adopting the NIOSH criterion
would result in the same illness being recorded twice.

Kaiser Permanente recommended that OSHA adopt a method for
determining the work relationship of TB cases that Kaiser Permanente
currently uses in California to evaluate whether cases are recordable,
in accordance with an agreement with the California Division of
Occupational Safety and Health (Ex. 15: 200):

1. The employer shall promptly investigate all tuberculin skin
test conversions according to the "Guidelines for Preventing the
Transmission of Mycobacterium tuberculosis in Health-Care
Facilities" published by the Centers for Disease Control and
Prevention (CDC Guidelines).

2. Probable exposure to Mycobacterium tuberculosis unrelated to
work environment. The conversion shall not be recorded on the log
if, after investigation, the employer reasonably determines that the
employee probably converted as a result of exposure unrelated to the
employee's work duties.

3. Probable exposure to Mycobacterium tuberculosis related to
work environment. The conversion shall be recorded on the log if,
after investigation, the employer reasonably determines that the
employee probably converted as a result of exposure related to the
employee's work duties.

4. Inability to determine probable cause of exposure. If, after
reasonably thorough investigation, the employer is unable to
determine whether the employee probably converted as a result of
exposure related to the employee's work duties, the following shall
be done:

a. The conversion shall not be recorded on the log if the
employee was, at all times during which the conversion could have
occurred, assigned to a unit or job classification, which met the
minimal risk, low risk, or very low risk criteria specified in the
CDC Guidelines.

b. In all other cases, the conversion shall be recorded on the
log.

As an initial matter, OSHA notes that the States are not authorized
to provide employers with variances to the Part 1904 regulations, under
either the rule being published today or the former rule. The issuing
of such variances is exclusively reserved to Federal OSHA, to help
ensure the consistency of the data nationwide and to make the data
comparable from state-to-state. OSHA has not adopted the approach
suggested by Kaiser Permanente because the approach is too complex,
does not apply equally to health care and non-health care settings, and
does not provide the clear guidance needed for a regulatory
requirement. However, because the final rule allows employers to rebut
the presumption of work-relatedness if a medical evaluation concludes
that the TB infection did not arise as a result of occupational exposure,
a physician or other licensed health care professional could use the CDC
Guidelines or another method to investigate the origin of the case. If
such an investigation resulted in information that demonstrates that the
case is not related to a workplace exposure, the employer need not record
the case. For example, such an investigation might reveal that the employee
had been vaccinated in childhood with the BCG vaccine. The employer may wish,
in such cases, to keep records of the investigation and determination.

Paragraph 1904.12(a) establishes the employer's basic obligation to
enter recordable musculoskeletal disorders on the Log and to check the
musculoskeletal disorder column on the right side of the Log when such
a case occurs. The paragraph states that, "[i]f any of your employees
experiences a recordable work-related musculoskeletal disorder (MSD),
you must record it on the OSHA 300 Log by checking the
"musculoskeletal disorder" column." Paragraph 1904.12(b)(1) contains
the definition of 'musculoskeletal disorder' used for recordkeeping
purposes. Paragraphs 1904.12(b)(2) and 1904.12(b)(3) provide answers to
questions that may arise in implementing the basic requirement,
including questions on the work-relatedness of MSDs.

The Proposal

The proposal defined MSDs as "injuries and illnesses * * *
result[ing] from ergonomic hazards," such as lifting, repeated motion,
and repetitive strain and stress on the musculoskeletal system. (61 FR
4046) This language was derived, in part, from the definition of the
term "cumulative trauma disorders (CTDs)," used in OSHA's Ergonomics
Program Management Guidelines For Meatpacking Plants (hereafter
"Meatpacking Guidelines"). The 1990 Meatpacking Guidelines used the
term CTDs to cover "health disorders arising from repeated
biomechanical stress due to ergonomic hazards." (Ex. 11 at p. 20.)

Appendix B to the recordkeeping rule proposed requirements for
employers to follow when recording MSDs. The proposed requirements
would have required recording: (1) whenever an MSD was diagnosed by a
health care provider, or (2) whenever an employee presented with one or
more of the objective signs of such disorders, such as swelling,
redness indicative of inflammation, or deformity. When either of these
two criteria was met, or when an employee experienced subjective
symptoms, such as pain, and one or more of the general criteria for
recording injuries and illnesses (i.e., death, loss of consciousness,
days away from work, restricted work, job transfer, or medical
treatment) were met, an MSD case would have been recordable under the
proposal.

The proposal also contained special provisions for determining
whether hot and cold treatments administered to alleviate the signs and
symptoms of MSDs would be considered first aid or medical treatment.
Under the former recordkeeping rule, the application of hot and cold
treatment on the first visit to medical personnel was considered first
aid, while the application of such treatment on the second or
subsequent visit was considered to constitute medical treatment. OSHA
proposed to revise this provision to consider hot or cold therapy to be
first aid for all injuries and illnesses except MSDs, but to consider
two or more applications of such therapy medical treatment if used for
an MSD case (61 FR 4064). Whether hot and cold therapies constitute
first aid or medical treatment is addressed in detail in section 1904.7
of the final recordkeeping rule. As discussed in that section, under
the final rule, hot and cold therapies are considered first aid,
regardless of the type of injury or illness to which they are applied
or the number of times such therapy is applied.

The Final Rule's Definition of Musculoskeletal Disorder

The preamble to the proposal described an MSD as an injury or
disorder "resulting from" ergonomic hazards. However, OSHA has not
carried this approach forward in the final rule because it would rely
on an assessment of the cause of the injury, rather than the nature of
the injury or illness itself.

Paragraph 1904.12(b)(1) of the final rule therefore states, in
pertinent part, that MSDs "are injuries and disorders of the muscles,
nerves, tendons, ligaments, joints, cartilage and spinal discs. MSDs do
not include injuries caused by slips, trips, falls, or other similar
accidents." This language clarifies that, for recordkeeping purposes,
OSHA is not defining MSDs as injuries or disorders caused by particular
risk factors in the workplace. Instead, the Agency defines MSDs as
including all injuries to the listed soft tissues and structures of the
body regardless of physical cause, unless those injuries resulted from
slips, trips, falls, motor vehicle accidents, or similar accidents. To
provide examples of injuries and disorders that are included in the
definition of MSD used in the final rule, Section 1904.12(b)(1)
contains a list of examples of MSDs; however, musculoskeletal
conditions not on this list may also meet the final rule's definition
of MSD.

Determining the Work-Relatedness of MSDs

Section 1904.12(b)(2) provides that "[t]here are no special
criteria for determining which musculoskeletal disorders to record. An
MSD case is recorded using the same process you would use for any other
injury or illness." This means that employers must apply the criteria
set out in sections 1904.5-1904.7 of the final rule to determine
whether a reported MSD is "work-related," is a "new case," and then
meets one or more of the general recording criteria. The following
discussion supplements the information provided in the summary and
explanation accompanying section 1904.5, to assist employers in
deciding which MSDs are work-related.

For MSDs, as for all other types of injuries and illnesses, the
threshold question is whether the geographic presumption established in
paragraph 1904.5(a) applies. The presumption applies whenever an MSD or
other type of injury or illness "results from an event or exposure in
the work environment." For recordkeeping purposes, an "event" or
"exposure" includes any identifiable incident, occurrence, activity,
or bodily movement that occurs in the work environment. If an MSD can
be attributed to such an event or exposure, the case is work related,
regardless of the nature or extent of the ergonomic risk factors
present in the workplace or the worker's job.

This position is not new to the final rule; it is clearly reflected
in the 1986 BLS Recordkeeping Guidelines. The Guidelines contain the
following discussion of the applicability of the work-relatedness
presumption to back injuries and hernia cases, which reflects OSHA's
position under this final rule:

Back and hernia cases should be evaluated in the same manner as
any other case. Questions concerning the recordability of these cases usually
revolve around: (1) The impact of a previous back or hernia
condition on the recordability of the case, or (2) whether or not
the back injury or hernia was work-related.

Preexisting conditions generally do not impact the recordability
of cases under the OSHA system. * * * For a back or hernia case to
be considered work-related, it must have resulted from a work-related event or exposure in the work environment. Employers may
sometimes be able to distinguish between back injuries that result
from an event in the work environment, and back injuries that are
caused elsewhere and merely surface in the work environment. The
former are recordable; the latter are not. This test should be
applied to all injuries and illnesses, not just back and hernia
cases. Guidelines at p. 32 (emphasis in original).

The Guidelines provide the following question and answer to
illustrate that MSDs may be attributable to events or exposures in the
work environment that pose little apparent ergonomic risk:

B-16 Q. An employee's back goes out while performing routine
activity at work. Assuming the employee was not involved in any
stressful activity, such as lifting a heavy object, is the case
recordable?

A. Particularly stressful activity is not required. If an event
(such as a * * * sharp twist, etc.) occurred in the work environment
that caused or contributed to the injury, the case would be
recordable, assuming it meets the other requirements for
recordability. Guidelines at p. 32 (emphasis in original).

OSHA believes that, in most cases, an employee who reports an MSD
at work will be able to identify the activity or bodily movements (such
as lifting, twisting, or repetitive motions) that produced the MSD. If
the activity or movements that precipitated the disorder occurred at
work, the presumption of work-relatedness is established without the
need for further analysis. However, cases may arise in which it is
unclear whether the MSD results from an event or exposure in the work
environment. In these cases, paragraph 1904.5(b)(3) of the final rule
directs the employer to evaluate the employee's work activities to
determine whether it is likely that one or more events or exposures in
the work environment caused or contributed to the disorder. In this
situation the employer would consider the employee report, the
ergonomic risk factors present in the employee's job, and other
available information to determine work-relationship.

In evaluating job activities and work conditions to identify
whether ergonomic risk factors are present, employers may turn to
readily available sources of information for assistance, such as
materials made available by OSHA on its web site, current scientific
evidence, available industry guidelines, and other pertinent sources.
This final rule does not establish new or different criteria for
determining whether an MSD is more likely than not to have resulted
from work activities or job conditions, i.e., from exposure to
ergonomic risk factors at work. As is the case for all injuries and
illnesses, the employer must make a good faith determination about
work-relatedness in each case, based on the available evidence.

The preamble discussion for paragraph 1904.5(b)(3) contains some
examples to assist employers in making this determination. In addition,
the BLS Guidelines contain the following examples:

Q. Must there be an identifiable event or exposure in the work
environment for there to be a recordable case? What if someone
experiences a backache, but cannot identify the particular movement
which caused the injury?

A. Usually, there will be an identifiable event or exposure to
which the employer or employee can attribute the injury or illness.
However, this is not necessary for recordkeeping purposes. If it
seems likely that an event or exposure in the work environment
either caused or contributed to the case, the case is recordable,
even though the exact time or location of the particular event or
exposure cannot be identified.

If the backache is known to result from some nonwork-related
activity outside the work environment and merely surfaces at work,
then the employer need not record the case. In these situations,
employers may want to document the reasons they feel the case is not
work related. (BLS Guidelines, p. 32.)

A large number of commenters suggested that the recordkeeping rule
should not contain criteria for recording MSD cases that were different
from those for recording all injuries and illnesses, arguing that they
should be captured using the criteria for all other types of injuries
and illnesses (see, e.g., Exs. 15: 9, 44, 76, 109, 122, 123, 130, 145,
146, 176, 188, 199, 201, 218, 235, 272, 273, 288, 289, 301, 303, 304,
347, 351, 359, 368, 386, 392, 395, 396, 409, 425, 427). The comments of
PPG Industries, Inc. (Ex. 15: 109) are representative of these views:
"The system for evaluating all cases should be consistent. When
evaluating musculoskeletal disorders, the normal recordkeeping criteria
should be used." The Voluntary Protection Programs Participants'
Association (VPPPA) also recommended that "MSDs should be treated as
any other injury or illness. If the problem arises to the level of
seriousness that it is a recordable injury or illness, then it should
be recorded on the log" (Ex. 15: 425). The National Safety Council
(Ex. 15: 359) recommended that "if an employee has pain, he or she
should report it. It then becomes recordable or not recordable based on
the usual criteria. The employer makes a decision on a case by case
basis."

OSHA agrees with these commenters that MSD cases should be recorded
in the same way as other injuries and illnesses, and should not have
separate recordability criteria. Using the same criteria for these
cases, which constitute one-third of all occupational injuries and
illnesses, simplifies the final rule and makes the system easier for
employers and employees to use. Employing consistent recording criteria
thus helps to achieve one of OSHA's major goals in this rulemaking,
simplification. Section 1904.12 has been included in the final rule not
to impose different recording criteria on MSDs, but to emphasize that
employers are to record MSD cases like all other injuries and
illnesses. OSHA believes that this approach to the recording of MSDs
will yield statistics on musculoskeletal disorders that are reliable
and complete.

Requiring Diagnosis by a Health Care Professional

A number of commenters recommended that OSHA require the recording
of musculoskeletal disorders only when they are diagnosed by a health
care professional or identified by a medical test result (see, e.g.,
Exs. 15: 20, 22, 39, 42, 44, 57, 60, 78, 82, 121, 126, 146, 173, 199,
201, 218, 225, 242, 246, 247, 248, 259, 272, 288, 289, 303, 318, 324,
332, 335, 341, 342, 348, 351, 355, 356, 357, 364, 366, 378, 384, 397,
414, 424, 440, 441). The National Electrical Contractors Association
(NECA) requested that "OSHA modify the current criteria to state
"Positive x-ray showing broken bones or fracture, diagnosis of broken
teeth, or diagnosis of acute soft tissue damages" (Ex. 15: 126). The
United Technologies Company (UTC) agreed that "MSDs should only be
recorded if the diagnosis is made by a health care provider operating
within the scope of his or her specialty" (Ex. 15: 440). The National
Coalition on Ergonomics (Ex. 15: 366) urged OSHA to limit the recording
of MSD cases to those diagnosed by highly qualified health care
professionals:

[O]SHA should not encourage unqualified individuals to
"diagnose" musculoskeletal disorders given the present state of
medical knowledge of their causes and cures. * * * Therefore, OSHA
should limit in the definition of musculoskeletal disorders the
diagnosis to qualified and trained physicians, and such other
practitioners as are accepted by the medical community as having the
training and skill necessary to adequately and appropriately treat
these cases.

Other commenters expressed similar opinions, arguing that the work
relationship of a given case should be determined by a health care
professional (see, e.g., Exs. 15: 9, 105, 248, 249, 250, 262, 272, 288,
303, 304, 324, 366, 397, 408, 440). The Footwear Industries of America
(Ex. 15: 249) recommended that "An MSD should be recordable only if it
is diagnosed by a health-care provider based on a determination that
the MSD is clearly work-related -- that is, caused by the work
environment." The American Dental Association (Ex. 15: 408) suggested
that "OSHA should not require employers to keep records of
musculoskeletal disorders unless and until a physician identifies work
as the "predominant cause" in a given case." United Technologies
Company recommended that the health care provider use a check list to
make this determination: "UTC also believes that the provider should
be required to complete a check list regarding work relatedness with
the language changed to include predominantly caused by the work
environment and the submittal of information by the employer" (Ex. 15:
440).

The Northrop Grumman Association (Ex. 15: 42) suggested that
"Recordability should only be based on objective, documented findings
by a licensed physician. In [proposed] mandatory Appendix B,
recordability is defined as diagnosis by a health care provider and/or
objective findings. The 'or' should be deleted. Only positive test
findings should denote recordability. There are physicians who diagnose
cases without any objective tests to confirm their diagnosis." Other
commenters (see, e.g., Exs. 15: 44, 386, 330, 332) recommended that MSD
cases be recorded only when they are diagnosed by a health care
provider and/or are identified by a positive test result and meet the
general recording criteria.

A few commenters argued that a health care professional's diagnosis
should not be considered evidence of work-relatedness (see, e.g., Exs.
15: 347, 363, 409). For example, the American Automobile Manufacturers
Association (AAMA) remarked that "[w]e strongly oppose the recording
of a musculoskeletal disorder based solely on the diagnosis by a health
care provider. A diagnosis, in and of itself, does not reflect whether
a musculoskeletal disorder is significant or serious in nature. Health
care providers record a description or diagnosis of an employee's
complaint whether minor or serious." On the other hand, the American
Federation of State, County, and Municipal Employees (Ex. 15: 362)
argued that "[w]orkers may not see a health care professional until
after they have endured symptoms for an extended period * * * The
reality of the situation is that a great number of workers who suffer
from symptoms will not be diagnosed by a health care provider unless or
until their condition becomes severe and/or disabling."

As discussed in the preamble to the work relationship section of
the final rule (§ 1904.5), an employer is always free to consult a
physician or other licensed health care professional to assist in
making the determination of work relationship in individual injury or
illness cases, including musculoskeletal disorders. If a physician or
other licensed health care professional has knowledge of the employee's
current job activities and work conditions, work history, and the work
environment, he or she can often use that information, along with the
results of a medical evaluation of the worker, to reach a conclusion
about the work-relatedness of the condition. Relying on the expertise
of a knowledgeable health care professional can be invaluable to the
employer in those infrequent cases for which it is not clear whether
workplace events or exposures caused or contributed to the MSD or
significantly aggravated pre-existing symptoms. Employers may also
obtain useful information from ergonomists, industrial engineers, or
other safety and health professionals who have training and experience
in relevant fields and can evaluate the workplace for the presence of
ergonomic risk factors.

However, OSHA does not require employers to consult with a
physician or other licensed health care professional or to have the
employee undergo medical tests when making work-relationship
determinations. The Agency finds that doing so would be both
unnecessary and impractical in the great majority of cases and would
result both in delaying the recording of occupational MSD cases and
increasing medical costs for employers.

In most situations, an evaluation by a physician or other licensed
health care professional is simply not needed in order to make a
recording decision. For example, if a worker strains a muscle in his or
her back lifting a heavy object, and the back injury results in days
away from work, there is no doubt either about the work-relationship of
the case or its meeting of the recording criteria. Similarly, if a
worker performing a job that has resulted in MSDs of the wrist in other
employees reports wrist pain and restricted motion, and the employer
places the employee on restricted work, the case is recordable and
there is no need to await a clinical diagnosis.

Recording of MSD Symptoms

In the preamble to the proposed rule (61 FR 4047), OSHA asked:

There is a concern that the proposed criteria [for recording
MSDs] will result in a situation where workers could be working with
significant pain for an extended period of time, without their case
being entered into the records. OSHA has been asked to consider an
additional recording criterion for these cases: record when the
employee reports symptoms (pain, tingling, numbness, etc.)
persisting for at least 7 calendar days from the date of onset. OSHA
asks for input on this criterion.

Some commenters urged OSHA to require employers to record MSD cases
where an employee reports symptoms that have persisted for at least 7
calendar days (see, e.g., Exs. 15: 87, 129, 186, 362, 369, 371, 374,
380). The American Federation of State County and Municipal Employees,
AFL-CIO (AFSCME) recommended:

Under-reporting of MSDs will increase if OSHA adopts this
proposal. It has been AFSCME's experience that workers experiencing
pain, soreness, tenderness, numbness, tingling and other sensations
in their extremities or back do not immediately report these
symptoms to their employer. Rather, most employees first attempt to
alleviate their symptoms on their own: they ingest medications, use
topical solutions, apply heat or cold to affected areas, or utilize
other remedies in their attempt to relieve pain, aches, stiffness,
or other symptoms. OSHA should require that these cases be recorded
when symptoms last for seven consecutive days.

Investigations conducted by AFSCME repeatedly demonstrate that
inclusion of the additional criterion is necessary in order to
ascertain accurately the number of work-related MSDs. Employer
records typically show MSD rates at or even well below ten percent
of employees at risk for these injuries. However, results of AFSCME-conducted symptom surveys show that it is common for a third or more
of the employees to respond that they have felt pain, numbness,
tingling, or other symptoms that have persisted for more than seven
days.* * *

AFSCME wishes to emphasize that accurate and complete recording
of MSDs is critically important. Early detection, proper medical
intervention, and appropriate measures to address ergonomic risk
factors in the workplace are all necessary to prevent and manage
MSDs (Ex. 15: 362).

Many commenters objected to the proposed 7-day symptom recording
concept (see, e.g., Exs. 15: 9, 20, 39, 122, 127, 128, 170, 230, 246,
248, 281, 289, 324, 330, 332, 341, 359, 378, 397, 406, 434). David E.
Jones of the law firm of Ogletree, Deakins, Nash, Smoak & Stewart (Ex.
15: 406) stated that this provision was unnecessary because "[t]he
prevalent experience has shown that employers typically record those
symptoms when they result in medical treatment, restricted work
activity, or days away from work." The Eli Lilly Company (Ex. 15: 434)
also observed that "[b]ased on input from [our] occupational health
physicians, the vast majority of MSD-type cases would manifest into
objective findings or a MSD diagnosis after 7 calendar days of
legitimate subjective symptoms."

Other objections to the proposal's 7-day symptom trigger were based
on practical considerations. Many commenters were opposed to recording
undiagnosed conditions that persist for seven days on the grounds that
the seriousness or veracity of the complaint of pain or other symptoms
could not be established by the employer (see, e.g., Exs. 15: 9, 20,
39, 121, 122, 127, 128, 170, 218, 230, 246, 248, 281, 289, 359, 366,
397). For example, the Dayton Hudson Corporation (Ex. 15: 121) stated:
"[s]elf-reporting of symptoms with no medical findings or evaluation
is an invitation for abuse. Are these cases work-related or serious?
Are they even real?" Clariant Corporation held the view that
"[d]isgruntled employees could use subjective findings as a means of
avoidance. It could be used to prevent them from doing a job or task
they do not like" (Ex. 15: 217). The National Coalition on Ergonomics
(Ex. 15: 366) opposed any recordation based on symptoms alone, stating:

First, persistent pain is a symptom, not a disorder, and
therefore cannot be a case. There is often no indication that
persistent pain is work-related, except that as the person becomes
more fatigued, the pain may appear or become more intense. Further,
because pain is subjective, there is no way to quantify it so as to
focus only on serious cases. Finally, pain can exist without an
underlying pathology. Pain in and of itself cannot be a case in the
absence of a diagnosis by a qualified medical practitioner, provided
that the case is serious, disabling or significant.

Second, other symptoms mentioned in OSHA's question do not
represent cases either. As we discuss below, individual symptoms are
not illnesses; symptoms, in conjunction with appropriate signs and/
or laboratory results are essential to diagnose specific conditions.

Since symptoms do not define cases, OSHA cannot -- indeed, should
not -- require employers to record complaints of uncertain validity
and non-specific origin. It is perhaps true that such employees
should see a trained physician or other practitioner, but only after
this event will there be a case to record, if one exists at all.

Linda Ballas & Associates (Ex. 15: 31) expressed a different
concern, namely that "[i]f an employee is experiencing pain, or
reports symptoms -- the clock should not have to click to 7 days before
the case is recordable. This will lead to under recording and under
reporting * * * ."

In response to the comments on this issue, OSHA finds that pain
and/or other MSD symptoms, of and by themselves, may indicate an injury
or illness. In this regard, MSD cases are not different from other
types of injury or illness. As discussed in the preamble to the
definitions section of the final rule (Subpart G), symptoms such as
pain are one of the primary ways that injuries and illnesses manifest
themselves. If an employee reports pain or other symptoms affecting the
muscles, nerves, tendons, etc., the incident must be evaluated for
work-relatedness, and, if determined by the employer to be work-related, must be tested against the recording criteria to determine its
recordability. If it is determined by the employer to be recordable, it
must be recorded as an MSD on the OSHA 300 Log.

The ICD-9-CM manual, the International Classification of Diseases,
Clinical Modification (ICD-CM), the official system of assigning codes
to diagnoses of disease, injury and illness, lists several MSD
conditions that consist only of pain. That is, when health care
professionals diagnose these disease states, they do so on the basis of
employee-reported pain (health care professionals often evaluate and
confirm such reports by physical examination when making a diagnosis).
According to the National Center for Health Statistics (NCHS), the
agency responsible for the coordination of all official disease
classification activities in the United States relating to the
International Classification of Diseases (ICD), the ICD-CM is the
official system of assigning codes to diagnoses and procedures
associated with hospital utilization in the United States, and is used
to code and classify morbidity data from inpatient and outpatient
records, physicians' offices, and most NCHS surveys. The following
table includes a few illustrative examples of ICD illness codes for
pain-related disorders that would be considered MSD cases under OSHA's
definition and would thus warrant an evaluation of work-relatedness by
the employer.

Pain is a symptom that generally indicates the existence of some
underlying physiological condition, such as inflammation, damage to a
spinal disc, or other biomechanical damage. The occurrence of pain or
other symptoms (such as, in the case of MSDs, tingling, burning,
numbness, etc.) is thus indicative of an incident that warrants
investigation by the employer for work-relatedness, the first step in
the injury and illness reporting and recording process. The occurrence
of pain or other symptoms, however, is not enough, in the absence of an
injury or illness that meets one or more of the recording criteria, to
make any injury or illness (including an MSD case) recordable under
Part 1904. Employers are not required to record symptoms unless they
are work-related and the injury or illness reaches the seriousness
indicated by the general recording criteria, which for MSD cases will
almost always be days away from work, restricted work, medical
treatment, or job transfer. Thus, the requirements governing the
recording of all injuries and illnesses will work to ensure that
symptoms such as the aches and pains that most people experience from
time to time during their lives, are not automatically recorded on the
OSHA Log. These same recording requirements will also ensure that those
MSDs that are determined by the employer to be work-related and that
also meet one or more of the recording criteria will be captured in the
national statistics.

If the employer is concerned that the case is not work-related, he
or she can refer the employee to a health care professional for a
determination, evaluation, or treatment. In this situation, or when the
employee has already obtained medical attention, the physician or other
licensed health care professional can help to differentiate between
work-related and non-work-related cases, minor aches and pains, or
inappropriate employee reports. This is no different for MSD cases than
for other types of injuries and illnesses, and does not represent a new
problem in the determination of work-related injury and illness. There
have always been disputes between workers and employers over the
existence of an injury or illness and whether it is work-related. If an
employer subsequently demonstrates that a worker is malingering or
determines that an injury or illness or is not work-related (using
OSHA's definition of work-related), the employer may remove the
recorded entry from the OSHA 300 Log.

Although OSHA believes that pain or other symptoms indicate an
injury or illness that warrants additional analysis, the final rule has
not adopted persistent symptoms alone, whether lasting for 7 days or
any other set time period, as an automatic recording criterion. OSHA is
concerned about workers who experience persistent pain for any reason,
and such pain, if work-related, may well warrant an inquiry into the
employee's work conditions and the taking of administrative actions.
However, pain or other symptoms, standing alone, have not ordinarily
been captured by the OSHA recordkeeping system, and OSHA has
accordingly not adopted persistent musculoskeletal pain as a recording
criterion, for the following reasons.

First, as discussed earlier, OSHA does not believe that MSD cases
should receive differential treatment for recording purposes, and the
final rule does not contain different criteria for recording MSD cases;
instead, it relies on the general criteria of § 1904.7 to capture
MSD cases. OSHA finds that, for recordkeeping purposes, MSD pain is no
different in nature than the pain caused by a bruise, cut, burn or any
other type of occupational injury or illness. For example, the OSHA
rule does not contain a criterion requiring that if a burn, cut or
bruise results in pain for seven days it is automatically recordable.
Creating a special provision for MSD pain would create an inconsistency
in the rule.

Further, OSHA believes that the provisions of the final
recordkeeping rule, taken together will appropriately capture reliable,
consistent, and accurate data on MSD cases. Incorporating a clear
definition of MSDs, clarifying the rule's requirements for determining
work-relatedness; and refining the definitions of restricted work,
first aid and medical treatment; will all work together to improve the
quality of the Log data on MSDs. OSHA concludes, based on an analysis
of the record evidence on MSDs, that the general recording criteria
will enhance the data on work-related, non-minor MSDs occurring in the
workplace, and that an additional "persistent pain" criterion is
unnecessary for purposes of the recordkeeping system.

New hires

Some commenters encouraged OSHA to find a way to exclude MSD cases
that involve minor muscle soreness in newly hired employees, i.e., to
allow employers to not record MSDs occurring during a "break-in"
period (see, e.g., Exs. 15: 27, 31, 39, 82, 87, 105, 186, 198, 204,
221, 239, 272, 283, 289, 303, 330, 359, 374, 412, 440). For example,
the American Meat Institute (Ex. 15: 330) remarked: "Employees
returning from vacation, or other extended break periods from the job
function, could have normal muscle aches to which hot/cold packs could
provide relief. Recording such cases would not meet the purpose [of the
OSHA Act] either." On the same topic, the National Safety Council (Ex.
15: 359) wrote:

The concept of forgiveness for a short period of adjustment to
return to work makes good sense in industries that are traditionally
very resistant to early return to work programs. If allowing for a
short "break-in" period helps get workers safely and comfortably
back to full productivity and earning capacity it should be
seriously considered. The Council recommends, however, that no
specific method be developed in the proposed rule because situations
may vary greatly from industry to industry.

The Harsco Corporation (Ex. 15: 105) suggested "Construction
activities can be a physically demanding occupation. If a person hasn't
worked in a period of time, the first couple of days can be very tough.
To transfer a person to a different task which would allow for the
affected body part to rest should have no bearing on recordability if
no other treatment is required."

Other commenters disagreed, however, that a recording exemption for
injuries occurring during a break-in period was appropriate (see, e.g.,
Exs. 15: 68, 359, 371). For example, the State of New York Workers'
Compensation Board (Ex. 15: 68) stated that:

As to the exclusion of minor soreness commonly occurring to
newly hired employees or employees on a rehab assignment during a
"break-in stage", we do not envision any reason to exclude
reporting solely on this basis. The criteria should not be to whom
the injury happens, but rather whether the injury would otherwise be
reportable regardless of who is injured.

The United Food and Commercial Workers Union (UFCW) argued:

We could not disagree more with the agency. The current proposal
in fact screens out all fleeting cases, and includes only those
cases that are serious, have progressed and become debilitating.
Only those cases with serious medical findings, lost workdays,
restricted days and those receiving medical treatment are currently
recordable -- not those with fleeting pain that goes away with a good
nights rest (Ex. 15: 371).

After a review of the record on this topic, OSHA finds that no
special provision for newly hired or transferred workers should be
included in the final rule. As the National Safety Council stated, it
would be very difficult to identify a single industry-wide method for
dealing with break-in or work conditioning periods. Any method of
exempting such cases would risk excluding legitimate work-related,
serious MSD cases. A newly hired employee can be injured just as easily
as a worker who has been on the job for many years. In fact,
inexperience on the job may contribute to an MSD injury or illness. For
example, a new worker who is not aware of the need to get assistance to
move a heavy load or perform a strenuous function may attempt to do the
task without help and be hurt in the process. Cases of this type, if
determined to be work-related, are appropriately included in national
statistics on occupational injuries and illnesses.

OSHA notes that minor muscle soreness, aches, or pains that do not
meet one or more of the general recording criteria will not be recorded
on the OSHA 300 Log. Therefore, the system already excludes minor aches
and pains that may occur when employees are newly hired, change jobs,
or return from an extended absence. These cases will be recorded only
if they reach the level of seriousness that requires recording. The
final rule's definition of first aid includes hot/cold treatments and
the administration of non-prescription strength analgesics, two of the
most common and conservative methods for treating minor muscle
soreness. Thus, the final rule allows newly hired workers to receive
these first aid treatments for minor soreness without the case being
recordable.

The Ergonomics Rulemaking

Many of the comments OSHA received on the proposed recordkeeping
rule referred to OSHA's efforts to develop an ergonomics standard.
Several commenters argued that OSHA was trying, through the
recordkeeping rule, to collect data to support an ergonomics standard
(see, e.g., Exs. 22, 183, 215, 304, 346, 397). Typical of these views
was that of the National Beer Wholesalers Association (NBWA) (Ex. 15:
215):

NBWA is especially troubled by the likelihood that the new
definitions of what injuries must be recorded and reported in the
current proposed rule are intended artificially to inflate the
number of reported musculoskeletal disorders, whether work-related
or not. Such a surge in MSDs could be used to justify additional
work on a workplace ergonomics rule despite the notable lack of a
scientific basis for regulation in this area.

Other commenters believed that OSHA was using the recordkeeping
rule to conduct a "backdoor rulemaking" to control ergonomics hazards
in the workplace (see, e.g., Exs. 15: 86, 215, 287, 304, 404, 412,
426). For example, the Reynolds Aluminum Company stated that:

Reynolds supports the inclusion of musculo-skeletal disorders
(MSDs) on the OSHA log, but does not support the industry-wide
application of the Ergonomics Program Management Guidelines For
Meatpacking Plants as the criteria for determining recordability. By
incorporating these guidelines into Appendix B, OSHA would be
implementing an ergonomics program. It would be inappropriate and
without legal or scientific basis to burden all industries with
ergonomic guidelines designed for a specific, unique industry (Ex.
15: 426).

Several commenters stated that the injury and illness recordkeeping
rules should not address musculoskeletal disorders until after an
ergonomics standard has been completed (see, e.g., Exs. 15: 13, 95,
393). For example, Entergy Services, Inc. (Ex. 15: 13) expressed the
following concerns:

This area is of concern since there is no standard that really
covers this issue except the meat packers standard * * * It is
believed that to record this type case, a standard should be in
place or language should be written to look at true disorders with
long term effect as compared to short term symptoms.

Many commenters also made comments on the overall debate about
ergonomics, i.e., that the medical community has not reached consensus
on what constitutes an MSD (see, e.g., Exs. 15: 116, 1267, 323, 355),
that there is too much scientific uncertainty about the issue of
ergonomics (see, e.g., Exs. 15: 57, 215, 304, 312, 342, 344, 355, 393,
397, 412, 424), that science and medicine cannot tell what is work-related and what is not (see, e.g., Exs. 15: 204, 207, 218, 323, 341,
342, 3546, 408, 412, 424, 443), that OSHA needs to do more research
before issuing a rule (Ex. 15: 234), that "musculoskeletal disorder"
is a vague category (Ex. 15: 393), and that OSHA should drop the issue
until the science is better (Ex. 15: 204).

OSHA does not agree that the provisions on the recording of MSDs
contained in this recordkeeping rule would conflict in any way with
OSHA's ergonomics rulemaking. Unlike the proposed ergonomics standard,
the final ergonomics standard does not use an OSHA recordable case as a
"trigger" that would require an employer to implement an ergonomics
program. As a result, a recordable musculoskeletal disorder does not
necessarily mean that the employer is required to implement an
ergonomics program. The recordkeeping rule's provisions on the
reporting of MSDs simply address the most consistent and appropriate
way to record injury and illness data on these disorders. MSDs, like
all other injuries and illnesses, must be evaluated for their work-relatedness and their recordability under the recordkeeping rule's
general recording criteria; only if the MSD meets these tests is the
case recordable. Additionally, OSHA has required the recording of MSDs
for many years.

The recordkeeping rule and the ergonomics standard treat MSDs
somewhat differently because the purpose of the two rules is different.
Thus, although many of the requirements in the two rules are the same,
some requirements reflect the different purposes of the two
rulemakings. For example, the recordkeeping rule defines MSDs more
broadly than the ergonomics rule because one of the purposes of the
Part 1904 recordkeeping system is to gather broad information about
injuries and illnesses; the ergonomics standard, in contrast, is
designed to protect workers from those MSD hazards the employer has
identified in their job. Another difference between the two rules is
that the ergonomics standard requires employers to evaluate employee
reports of MSD signs and symptoms that last for seven consecutive days,
although the recordkeeping rule does not require employers to record
signs and symptoms that last for seven consecutive days unless such
signs or symptoms involve medical treatment, days of restricted work,
or days away from work. The record in the ergonomics rulemaking
strongly supported early reporting of MSD signs and symptoms because
such early reporting reduces disability, medical costs, and lost
productivity. However, evidence in the recordkeeping rulemaking did not
support a requirement that persistent signs and symptoms of all
occupational injuries and illnesses be recorded on the OSHA Log, and
the final recordkeeping rule accordingly contains no such requirement.

Section 1904.29 Forms

Section 1904.29, titled "Forms," establishes the requirements for
the forms (OSHA 300 Log, OSHA 300A Annual Summary, and OSHA 301
Incident Report) an employer must use to keep OSHA Part 1904 injury and
illness records, the time limit for recording an injury or illness
case, the use of substitute forms, the use of computer equipment to
keep the records, and privacy protections for certain information
recorded on the OSHA 300 Log.

Paragraph 1904.29(a) sets out the basic requirements of this
section. It directs the employer to use the OSHA 300 (Log), 300A
(Summary), and 301 (Incident Report) forms, or equivalent forms, to
record all recordable occupational injuries and illnesses. Paragraph
1904.29(b) contains requirements in the form of questions and answers
to explain how employers are to implement this basic requirement.
Paragraph 1904.29(b)(1) states the requirements for: (1) Completing the
establishment information at the top of the OSHA 300 Log, (2) making a
one- or two-line entry for each recordable injury and illness case, and
(3) summarizing the data at the end of the year. Paragraph
1904.29(b)(2) sets out the requirements for employers to complete the
OSHA 301 Incident Report form (or equivalent) for each recordable case
entered on the OSHA 300 Log. The requirements for completing the annual
summary on the Form 300A are found at Section 1904.32 of the final
rule.

Required Forms

OSHA proposed to continue to require employers to keep both a Log
(Form 300) and an Incident Report form (Form 301) for recordkeeping
purposes, just as they have been doing under the former rule. OSHA
received no comments on the use of two forms for recordkeeping
purposes, i.e., a Log with a one-line entry for each case and a
supplemental report that requires greater detail about each injury or
illness case. OSHA has therefore continued to require two recordkeeping
forms in the final rule, although these have been renumbered (they were
formerly designated as the OSHA 200 Log and the OSHA 101 Supplementary
Report).

In addition to establishing the basic requirements for employers to
keep records on the OSHA 300 Log and OSHA 301 Incident Report and
providing basic instructions on how to complete these forms, this
section of the rule states that employers may use two lines of the OSHA
300 Log to describe an injury or illness, if necessary. Permitting employers
to use two lines when they need more space and specifying this information
in the rule and on the Log responds to several comments (see, e.g., Exs. 37;
15: 138, 389) about the lack of adequate space for descriptive
information on the proposed OSHA 300 Log form. OSHA believes that most
injury and illness cases can be recorded using only one line of the
Log. However, for those cases requiring more space, this addition to
the Log makes it clear that two lines may be used to describe the case.
The OSHA 300 Log is designed to be a scannable document that employers,
employees and government representatives can use to review a fairly
large number of cases in a brief time, and OSHA believes that employers
will not need more than two lines to describe a given case. Employers
should enter more detailed information about each case on the OSHA 301
form, which is designed to accommodate lengthier information.

Deadline for Entering a Case

Paragraph 1904.29(b)(3) establishes the requirement for how quickly
each recordable injury or illness must be recorded into the records. It
states that the employer must enter each case on the OSHA 300 Log and
OSHA 301 Form within 7 calendar days of receiving information that a
recordable injury or illness has occurred. In the vast majority of
cases, employers know immediately or within a short time that a
recordable case has occurred. In a few cases, however, it may be
several days before the employer is informed that an employee's injury
or illness meets one or more of the recording criteria.

The former recordkeeping rule required each injury or illness to be
entered on the OSHA Log and Summary no later than six working days
after the employer received information about the case. OSHA proposed
to change this interval to 7 calendar days. Several commenters agreed
that allowing 7 calendar days would simplify the reporting time
requirement and reduce confusion for employers (see, e.g., Exs. 36; 15:
9, 36, 65, 107, 154, 179, 181, 203, 332, 369, 387). Other commenters
(see, e.g., Exs. 15: 46, 60, 82, 89, 184, 204, 225, 230, 239, 283, 288,
305, 348, 375, 390, 346, 347, 348, 358, 389, 409, 423, 424, 431)
objected to the proposed 7 calendar-day requirement, principally on the
grounds that the proposed 7 calendar-day time limit would actually be
shorter than the former rule's 6 working-day limit in some situations,
such as if a long holiday weekend intervened (see, e.g., Exs. 15: 9,
60, 230, 272, 375).

One commenter urged OSHA to adopt a 21-day period because
conducting a thorough investigation to determine whether a case is
work-related or a recurrence of an old case can sometimes take longer
than 7 or even 10 days (Ex. 15: 184). In the final rule, OSHA is
adopting a 7 calendar-day time limit for the recording of an injury or
illness that meets the rule's recording criteria. For many employers,
the 7 day calendar period will be longer than the former 6 working day
period. Although it is true that, in other cases, a 7 calendar-day
limit may be slightly shorter than the former rule's 6 working-day
limit, the Agency believes that the 7 calendar-day rule will provide
employers sufficient time to receive information and record the case.
In addition, a simple "within a week" rule will be easier for
employers to remember and apply, and is consistent with OSHA's
decision, in this rule, to move from workdays to calendar days whenever
possible. The Agency believes that 7 calendar days is ample time for
recording, particularly since the final rule, like the former rule,
allows employers to revise an entry simply by lining it out or amending
it if further information justifying the revision becomes available.
The final rule does contain one exception for the 7 day recording
period: if an employee experiences a recordable hearing loss, and the
employer elects to retest the employee's hearing within 30 days, the
employer can wait for the results of the retest before recording.

Equivalent Forms and Computerized Records

Commenters were unanimous in urging OSHA to facilitate the use of
computers and to allow the use of alternative forms in OSHA
recordkeeping (see, e.g., Exs. 21, 22, 15:9, 11, 45, 72, 95, 111, 184,
262, 271, 288, 305, 318, 341, 346, 389, 390, 396, 405, 424, 434, 438).
The comments of the U.S. West Company (Ex. 15:184) are representative
of these views:

U S WEST strongly supports provisions in the proposed rule that
allow "equivalent" forms instead of the OSHA Forms 300 and 301. U
S WEST also supports the provisions that would allow use of data
processing equipment and computer printouts of equivalent forms.
These provisions allow employers considerable flexibility and
greatly reduced paperwork burdens and costs, especially for larger
multi-site employers.

Accordingly, paragraphs 1904.29(b)(4) and (b)(5) of the final rule
make clear that employers are permitted to record the required
information on electronic media or on paper forms that are different
from the OSHA 300 Log, provided that the electronic record or paper
forms are equivalent to the OSHA 300 Log. A form is deemed to be
"equivalent" to the OSHA 300 Log if it can be read and understood as
easily as the OSHA form and contains at least as much information as
the OSHA 300 Log. In addition, the equivalent form must be completed in
accordance with the instructions used to complete the OSHA 300 Log.
These provisions are intended to balance OSHA's obligation, as set
forth in Section 8(d) of the OSH Act, to reduce information collection
burdens on employers as much as possible, on the one hand, with the
need, on the other hand, to maintain uniformity of the data recorded
and provide employers flexibility in meeting OSHA's recordkeeping
requirements. These provisions also help to achieve one of OSHA's goals
for this rulemaking: to allow employers to take full advantage of
modern technology and computers to meet their OSHA recordkeeping
obligations.

Several commenters were concerned that computerized records would
make it more difficult for employees to access the records (see, e.g.,
Exs. 15:379, 380, 418, 438). Representative of these views is a comment
from the United Auto Workers (UAW):

Electronic data collection is an essential step to moving
forward, especially regarding data analysis for large worksites.
However, as it works today electronic collection can also be an
obstacle to prompt availability to persons without direct access to
the computer system. For this reason, OSHA should require the
availability of electronic information to employees and employee
representatives in the same time interval as hard copy information,
regardless of whether the computer system is maintained at the site
(Ex. 15: 438).

OSHA does not believe that computerization of the records will
compromise timely employee, employer or government representative
access to the records. To ensure that this is the case, paragraph
§ 1904.29(b)(5) of the final rule allows the employer to keep
records on computer equipment only if the computer system can produce
paper copies of equivalent forms when access to them is needed by a
government representative, an employee or former employee, or an
employee representative, as required by §§ 1904.35 or 1904.40,
respectively. Of course, if the employee requesting access to the
information agrees to receive it by e-mail, this is acceptable under
the 1904 rule.

OSHA also proposed specifically to require that, on any equivalent
form, three of the questions on the form asking for details of the
injury or illness (proposed questions 16, 17, and 18) be positioned on
the form in the same order and be phrased in identical language to that
used on the OSHA 301 Incident Report. The three questions were all designed to
obtain more detailed information about how the injury or illness
occurred, what equipment or materials the employee was using at the
time of the injury or illness, and the activity the employee was
engaged in at the time of the injury or illness.

A number of commenters objected to the proposed requirement that,
on any equivalent form, these three questions be asked in the same
order and be phrased in the same language as on the OSHA Incident
Report (see, e.g., Exs. 33; 37; 15: 9, 41, 44, 59, 60, 119, 132, 156,
176, 201, 231, 281, 283, 301, 312, 318, 322, 329, 334, 335, 346). In
addition to arguing that such a requirement would be burdensome and
prescriptive, these commenters pointed out that the proposed OSHA
recordkeeping form was not identical to many State workers'
compensation forms (the forms most often used as alternatives to the
OSHA forms), which would mean that employers in these States would, in
effect, be forced to use the OSHA forms (Ex. 15: 334). Other commenters
argued that being required to use a certain format would hamper
employers' internal accident investigations (see, e.g., Exs. 15: 44,
176, 322). For example, the Kodak Company remarked:

In [proposed] section 1904.5(b)(2) -- "Questions 16, 17 & 18 must
be asked in the same order and using identical language from the
Form 301." Companies, like Kodak, have well established techniques
to ascertain the cause of the injury and illness. This requirement
would actually hamper our ability to find the root cause of an
accident. This requirement should be eliminated from the rule. (Ex.
15: 322)

The final rule does not include a requirement that certain
questions on an equivalent form be asked in the same order and be
phrased in language identical to that used on the OSHA 301 form.
Instead, OSHA has decided, based on a review of the record evidence,
that employers may use any substitute form that contains the same
information and follows the same recording directions as the OSHA 301
form, and the final rule clearly allows this. Although the consistency
of the data on the OSHA 301 form might be improved somewhat if the
questions asking for further details were phrased and positioned in an
identical way on all employers' forms, OSHA has concluded that the
additional burden such a requirement would impose on employers and
workers' compensation agencies outweighs this consideration.

OSHA has revised the wording of these three questions on the final
OSHA 301 form to match the phraseology used by the Bureau of Labor
Statistics (BLS) in its Annual Survey of Occupational Injuries and
Illnesses. By ensuring consistency across both the BLS and OSHA forms,
this change will help those employers who respond both to the BLS
Annual Survey and keep OSHA records.

Handling of Privacy Concern Cases

Paragraphs 1904.29(b)(6) through (b)(10) of the final rule are new
and are designed to address privacy concerns raised by many commenters
to the record. Paragraph 1904.29(b)(6) requires the employer to
withhold the injured or ill employee's name from the OSHA 300 Log for
injuries and illnesses defined by the rule as "privacy concern cases"
and instead to enter "privacy concern case" in the space where the
employee's name would normally be entered if an injury or illness
meeting the definition of a privacy concern case occurs. This approach
will allow the employer to provide OSHA 300 Log data to employees,
former employees and employee representatives, as required by
§ 1904.35, while at the same time protecting the privacy of workers
who have experienced occupational injuries and illnesses that raise
privacy concerns. The employer must also keep a separate, confidential
list of these privacy concern cases, and the list must include the
employee's name and the case number from the OSHA 300 Log. This
separate listing is needed to allow a government representative to
obtain the employee's name during a workplace inspection in case
further investigation is warranted and to assist employers to keep
track of such cases in the event that future revisions to the entry
become necessary.

Paragraph 1904.29(b)(7) defines "privacy concern cases" as those
involving: (i) An injury or illness to an intimate body part or the
reproductive system; (ii) an injury or illness resulting from a sexual
assault; (iii) a mental illness; (iv) a work-related HIV infection,
hepatitis case, or tuberculosis case; (v) needlestick injuries and cuts
from sharp objects that are contaminated with another person's blood or
other potentially infectious material, or (vi) any other illness, if
the employee independently and voluntarily requests that his or her
name not be entered on the log. Paragraph 1904.29(b)(8) establishes
that these are the only types of occupational injuries and illnesses
that the employer may consider privacy concern cases for recordkeeping
purposes.

Paragraph 1904.29(b)(9) permits employers discretion in recording
case information if the employer believes that doing so could
compromise the privacy of the employee's identity, even though the
employee's name has not been entered. This clause has been added
because OSHA recognizes that, for specific situations, coworkers who
are allowed to access the log may be able to deduce the identity of the
injured or ill worker and obtain innapropriate knowledge of a privacy-sensitive injury or illness. OSHA believes that these situations are
relatively infrequent, but still exist. For example, if knowing the
department in which the employee works would inadvertently divulge the
person's identity, or recording the gender of the injured employee
would identifying that person (because, for example, only one woman
works at the plant), the employer has discretion to mask or withhold
this information both on the Log and Incident Report.

The rule requires the employer to enter enough information to
identify the cause of the incident and the general severity of the
injury or illness, but allows the employer to exclude details of an
intimate or private nature. The rule includes two examples; a sexual
assault case could be described simply as "injury from assault," or
an injury to a reproductive organ could be described as "lower
abdominal injury." Likewise, a work-related diagnosis of post
traumatic stress disorder could be described as "emotional
difficulty." Reproductive disorders, certain cancers, contagious
diseases and other disorders that are intimate and private in nature
may also be described in a general way to avoid privacy concerns. This
allows the employer to avoid overly graphic descriptions that may be
offensive, without sacrificing the descriptive value of the recorded
information.

Paragraph 1904.29(b)(10) protects employee privacy if the employer
decides voluntarily to disclose the OSHA 300 and 301 forms to persons
other than those who have a mandatory right of access under the final
rule. The paragraph requires the employer to remove or hide employees'
names or other personally identifying information before disclosing the
forms to persons other than government representatives, employees,
former employees or authorized representatives, as required by
paragraphs 1904.40 and 1904.35, except in three cases. The employer may
disclose the forms, complete with personally identifying information,
(2) only: (i) to an auditor or consultant hired by the employer to
evaluate the safety and health program; (ii) to the extent necessary for
processing a claim for workers' compensation or other insurance benefits;
or (iii) to a public health authority or law enforcement agency for uses
and disclosures for which consent , an authorization, or opportunity to
agree or object is not required under section 164.512 of the final rule on
Standards for Privacy of Individually Identifiable Health Information, 45 CFR
164.512.

These requirements have been included in § 1904.29 rather than
in § 1904.35, which establishes requirements for records access,
because waiting until access is requested to remove identifying
information from the OSHA 300 Log could unwittingly compromise the
injured or ill worker's privacy and result in unnecessary delays. The
final rule's overall approach to handling privacy issues is discussed
more fully in the preamble discussion of the employee access provisions
in § 1904.35.

The Treatment of Occupational Illness and Injury Data on the Forms

The treatment of occupational injury and illness data on the OSHA
forms is a key issue in this rulemaking. Although the forms themselves
are not printed in the Code of Federal Regulations (CFR), they are the
method OSHA's recordkeeping regulation uses to meet the Agency's goal
of tracking and reporting occupational injury and illness data. As
such, the forms are a central component of the recordkeeping system and
mirror the requirements of the Part 1904 regulation. The final Part
1904 rule requires employers to use three forms to track occupational
injuries and illnesses: the OSHA 300, 300A, and 301 forms, which
replace the OSHA 200 and 101 forms called for under the former
recordkeeping rule, as follows:

1. The OSHA Form 300, Log of Work-Related Injuries and Illnesses,
replaces the Log portion of the former OSHA Form 200 Log and Summary of
Occupational Injuries and Illnesses. The OSHA 300 Log contains space
for a description of the establishment name, city and state, followed
by a one-line space for the entry for each recordable injury and
illness.

2. The OSHA Form 300A, Summary of Work-Related Injuries and
Illnesses, replaces the Summary portion of the former OSHA Form 200 Log
and Summary of Occupational Injuries and Illnesses. The Form 300A is
used to summarize the entries from the Form 300 Log at the end of the
year and is then posted from February 1 through April 30 of the
following year so that employees can be aware of the occupational
injury and illness experience of the establishment in which they work.
The form contains space for entries for each of the columns from the
Form 300, along with information about the establishment, and the
average number of employees who worked there the previous year, and the
recordkeeper's and corporate officer's certification of the accuracy of
the data recorded on the summary. (These requirements are addressed
further in Section 1904.32 of the final rule and its associated
preamble.)

3. The OSHA Form 301, Injury and Illness Report, replaces the
former OSHA 101 Form. Covered employers are required to fill out a one-page form for each injury and illness recorded on the Form 300. The
form contains space for more detailed information about the injured or
ill employee, the physician or other health care professional who cared
for the employee (if medical treatment was necessary), the treatment
(if any) of the employee at an emergency room or hospital, and
descriptive information telling what the employee was doing when
injured or ill, how the incident occurred, the specific details of the
injury or illness, and the object or substance that harmed the
employee. (Most employers use a workers' compensation form as a
replacement for the OSHA 301 Incident Report.)

The use of a three-form system for recordkeeping is not a new
concept. The OSHA recordkeeping system used a separate summary form
from 1972 to 1977, when the Log and Summary forms were combined into
the former OSHA Form 200 (42 FR 65165). OSHA has decided that the
three-form system (the 300 Log, the 300A summary, and the 301 Incident
Report) has several advantages. First, it provides space for more cases
to be entered on the Log but keeps the Log to a manageable size.
Second, it helps to ensure that an injured or ill employee's name is
not posted in a public place. When the forms were combined in 1977 into
a single form, employers occasionally neglected to shield an employee's
name on the final sheet of the 200 Log, even though the annual summary
form was designed to mask personal identifiers. The use of a separate
300A summary form precludes this possibility. Third, the use of a
separate summary form (the final rule's Form 300A) allows the data to
be posted in a user-friendly format that will be easy for employees and
employers to use. Fourth, a separate 300A Form provides extra space for
information about an employee's right to access the Log, information
about the establishment and its employees, and the dual certifications
required by § 1904.32 of the rule. Finally, a separate 300A Form
makes it easier to attach to the reverse side of the form worksheets
that are designed to help the employer calculate the average number of
employees and hours worked by all employees during the year.

The majority of the changes to the final forms (compared with the
forms used with the former rule and the proposed forms) have been made
to reflect the requirements of the final rule and are needed to align
the forms with the final regulatory requirements. All of the other
changes to the forms reflect formatting and editorial changes made to
simplify the forms, make them easier to understand and complete, and
facilitate use of the data. The forms have been incorporated into an
information package that provides individual employers with several
copies of the OSHA 300, 300A, and 301 forms; general instructions for
filling out the forms and definitions of key terms; an example showing
how to fill out the 300 Log; a worksheet to assist employers in
computing the average number of employees and the total number of hours
worked by employees at the establishment in the previous year; a non-mandatory worksheet to help the employer compute an occupational injury
and illness rate; and instructions telling an employer how to get
additional help by (1) accessing the OSHA Internet home page, or (2) by
calling the appropriate Federal OSHA regional office or the OSHA
approved State-Plan with jurisdiction. The package is included in final
rule Section VI, Forms, later in this preamble.

The Size of the OSHA Recordkeeping Forms

The OSHA recordkeeping forms required by the final Part 1904
recordkeeping rule are printed on legal size paper (8½" x 14"). The
former rule's Log was an 11 by 17-inch form, the equivalent of two
standard 8½ by 11-inch pages. The former 200 Log was criticized
because it was unwieldy to copy and file and contained 12 columns for
recording occupational injury and occupational illness cases. The
proposed OSHA 300 Log and Summary would have fit on a single 8½ by
11-inch sheet of paper (61 FR 4050), a change that would have been made
possible by the proposed elimination of redundancies on the former 200
Log and of certain data elements that provided counts of restricted
workdays and separate data on occupational injury and illness cases.
The proposed OSHA 300 Form was favorably received by a large number of
commenters (see, e.g., Exs. 19, 44, 15: 48, 157, 246, 307, 347, 351, 373,
374, 378, 384, 391, 395, 396, 427, 434, 441, 443). For example, the National
Association of Plumbing-Heating-Cooling Contractors (NAPHCC) stated:

NAPHCC applauds the Agency's efforts to simplify the Injury and
Illness Log and Summary in the form of a new Form 300 and Form 301.
Employers will be more comfortable with the one-page forms -- they
appear less ominous than the oversized 200 Form and therefore have a
better chance of being completed in a timely and accurate manner
(Ex. 15: 443, p. 6).

A number of commenters were concerned that proposed the 300 form
would fail to capture important data and argued that the former Log
should be retained (see, e.g., Exs. 15:15, 47, 283, 369, 429, 438). The
primary argument of this group of commenters was that the size of the
form should not determine which data elements were included on the Log
and which were not. The comment of the International Union, United
Automobile, Aerospace & Agricultural Implement Workers of America -- UAW
summed up this position: "The UAW uses this data on a yearly basis
when it becomes available at the national level, and on a daily basis
at the plant level. Compared to the value of the summary data and data
series, the goal of reducing the size of the form to something easily
Xeroxed is silly" (Ex. 15: 438, p. 2). The International Brotherhood
of Teamsters commented "OSHA believes the change results in a
simplified form that fits on a standard sheet of paper that can be
easily copied and kept on a personal computer. * * * The storage
capacity of an additional page in a personal computer is hardly
burdensome. The amount of information that can be collected should
always be need based, and never be limited to what an 8½" x 11"
sheet of paper can hold" (Ex. 15: 369, p. 49).

OSHA agrees that the proposed Log would have resulted in a
significant loss of useful data and has therefore maintained several
data fields on the final OSHA 300 Log to capture counts of restricted
work days and collect separate data on occupational injuries and
several types of occupational illness. However, there is a limit to the
information that can be collected by any one form. OSHA wishes to
continue to make it possible for those employers, especially smaller
employers, who wish to keep records in paper form to do so. It is also
important that the Log be user-friendly, easily copied and filed, and
otherwise manageable. Although a form 8½ x 11 inches in size would
be even easier to manage, OSHA has concluded that a form of that size
is too small to accommodate the data fields required for complete and
accurate reporting.

Accordingly, OSHA has redesigned the OSHA 300 Log to fit on a legal
size (8½ x 14 inches) piece of paper and to clarify that employers
may use two lines to enter a case if the information does not fit
easily on one line. The OSHA forms 300A and 301, and the remainder of
the recordkeeping package, have also been designed to fit on the same-size paper as the OSHA 300 Log. For those employers who use
computerized systems (where handwriting space is not as important)
equivalent computer-generated forms can be printed out on 8½ x 11
sheets of paper if the printed copies are legible and are as readable
as the OSHA forms.

Commenters raised four major issues concerning the OSHA 300 Log:
(1) Defining lost workdays (discussed below); (2) collecting separate
data on occupational injury and occupational illness (discussed below);
(3) collecting separate data on musculoskeletal disorders (discussed
below and in the summary and explanation associated with § 1904.12;
and (4) recurrences (discussed in the summary and explanation
associated with § 1904.6, Determination of new cases). In addition,
commenters raised numerous minor issues concerning the 300 Log data
elements and forms design; these are discussed later in this section.

Defining Lost Workdays

OSHA proposed to eliminate the term "lost workdays," by replacing
it with "days away from work" (61 FR 4033). The OSHA recordkeeping
system has historically defined lost workdays as including both days
away from work and days of restricted work activity, and the
Recordkeeping Guidelines discussed how to properly record lost workday
cases with days away from work and lost workday cases with days of
restricted work activity (Ex. 2, p. 47, 48). However, many use the term
"lost workday" in a manner that is synonymous with "day away from
work," and the term has been used inconsistently for many years. Many
commenters on the proposal agreed that the term "lost workday" should
be deleted from the forms and the recordkeeping system because of this
confusion (see, e.g., Exs. 33; 37; 15: 9, 26, 69, 70, 105, 107, 136,
137, 141, 146, 176, 184, 204, 224, 231, 266, 271, 272, 273, 278, 281,
287, 288, 301, 303, 305, 347, 384, 414, 428). The Akzo Nobel Chemicals
Company (Ex. 37) simply commented "[a] big ATTA BOY for removing
restricted work cases from under the lost time umbrella. They never
really belonged there." William K. Principe of the law firm of
Constangy, Brooks & Smith, LLC, stated that:

The elimination of the term "lost work days" is a good idea,
because its use under the existing recordkeeping regulations has
been confusing. Recordkeepers have equated "lost work days" with
"days away from work," but have not thought that "lost work
days" included days of "restricted work activity." Thus, the
elimination of "lost work days" will result in more understandable
terminology.

The Hoffman-La Roche, Inc. company agreed with OSHA's proposal to
eliminate the term lost workdays from the system, stating that "[t]he
term "lost workdays" is confusing and does not clearly define whether
the case involved days away from work or restricted days. However, the
term "lost workday case" still has a place in defining a case that
has either days away from work or restricted days." The Jewel Coal and
Coke Company (Ex. 15: 281) remarked that:

[w]e believe that the listing of restricted work injuries/
illnesses has its purpose as to the consideration of the seriousness
of the injury or illness. However, we believe that restricted work
duty injuries/illnesses should be placed in a separate category from
days away from work and should not be considered as serious as
accidents with days away from work but are in fact more serious than
first Aid cases or other medically reportable cases. We believe that
the listing of the date of return of the employee to full work
activities may very well have it's place on the OSHA Form 301 or
other supplemental forms.

In the final rule, OSHA has eliminated the term "lost workdays"
on the forms and in the regulatory text. The use of the term has been
confusing for many years because many people equated the terms "lost
workday" with "days away from work" and failed to recognize that the
former OSHA term included restricted days. OSHA finds that deleting
this term from the final rule and the forms will improve clarity and
the consistency of the data.

The 300 Log has four check boxes to be used to classify the case:
death, day(s) away from work, days of restricted work or job transfer;
and case meeting other recording criteria. The employer must check the
single box that reflects the most severe outcome associated with a
given injury or illness. Thus, for an injury or illness where the
injured worker first stayed home to recuperate and then was assigned to
restricted work for several days, the employer is required only to
check the box for days away from work (column I). For a case with only
job transfer or restriction, the employer must check the
box for days of restricted work or job transfer (Column H). However,
the final Log still allows employers to calculate the incidence rate
formerly referred to as a "lost workday injury and illness rate"
despite the fact that it separates the data formerly captured under
this heading into two separate categories. Because the OSHA Form 300
has separate check boxes for days away from work cases and cases where
the employee remained at work but was temporarily transferred to
another job or assigned to restricted duty, it is easy to add the
totals from these two columns together to obtain a single total to use
in calculating an injury and illness incidence rate for total days away
from work and restricted work cases.

Counting Days of Restricted Work or Job Transfer

Although the final rule does not use the term "lost workday"
(which formerly applied both to days away from work and days of
restricted or transferred work), the rule continues OSHA's longstanding
practice of requiring employers to keep track of the number of days on
which an employee is placed on restricted work or is on job transfer
because of an injury or illness. OSHA proposed to eliminate the
counting of the number of days of restricted work from the proposed 300
Log (61 FR 4046). The proposal also asked whether the elimination of
the restricted work day count would provide an incentive for employers
to temporarily assign injured or ill workers to jobs with little or no
productive value to avoid recording a case as one involving days away
from work (61 FR 4046).

[e]xperience with tracking lost or restricted workdays the way
it is being done today indicates that it is fruitless. The interest
is in the number of lost workday or restricted workday cases with
only minor attention being given to the number of days involved.
Elimination of the term "lost workdays" in regard to restricted
workdays would surely be a step in the direction of simplicity and
focus. The severity of an injury/illness is more clearly indicated
by the number of days away from work than by any other means. The
inclusion of cases involving restricted work only clouds the issue.

The Monsanto Corporation (Ex. 28) urged the Agency to do away with
all day counts, noting that Monsanto:

[u]ses the recordable case as the basis of our performance
measurement system. We measure the number of days away and
restricted but rarely look at them. We agree that OSHA should
eliminate the number of days of restricted work from the
requirements but we would also delete the number of days away as
well. While the number of days are some measure of "severity", we
think a better and simpler measure is just the cases rate for
fatalities and/or days away cases.

For example, the National Grain and Feed Association (Ex. 15: 119)
argued that "[t]here is no evidence that the current restricted work
activity day counts are being used in safety and health programs and
there is no purpose in continuing the restricted work activity count
requirement." The Tennessee Valley Authority (Ex. 15: 235) argued that
"[o]nly days away from work or death should be recorded on the 300
log. Recording of restricted work-day cases is difficult to
consistently record, thereby, not providing a good data base for
comparison."

[r]estricted work days should be counted. A restricted case with
1 restricted day would be less severe than a restricted work case
with 30 days. The elimination of the restricted work activity day
count will provide an incentive for employers to temporarily assign
injured or ill workers to jobs with little or no productive value to
avoid recording a case as one involving days away from work.* * *

Most of these commenters argued that restricted work day data are
needed to gauge the severity of an occupational injury or illness (see,
e.g., Exs. 15: 31, 34, 41, 181, 186, 310, 369, 371, 438) or that such
data are a measure of lost productivity (see, e.g., Exs. 15: 41, 61,
281). The American Association of Occupational Health Nurses stated
that "[O]SHA should be aware that modifications to recording
restricted work days will result in the loss of valuable information
related to the severity of the injuries/illnesses." The Jewel Coal and
Coke Company (Ex. 15: 281) stated that:

We believe that the listing of restricted work injuries/
illnesses has its purpose as to the consideration of the seriousness
of the injury or illness. However, we believe that restricted work
duty injuries/illnesses should be placed in a separate category from
days away from work and should not be considered as serious as
accidents with days away from work but are in fact more serious than
first Aid cases or other medically reportable cases.* * *

[r]estricted work day counts as well as lost work day counts can
be measures of the severity of individual illnesses/injuries. In
addition through trend analysis lost work day rates and restricted
work day rates may be calculated by job, department, etc. to
identify higher risk jobs, departments, etc. and/or measure the
effectiveness of interventions and progress in the development of a
comprehensive ergonomics program.

As to OSHA's question in the proposal about the incentive for
employers to offer restricted work to employee's in order to avoid
recording a case with days away from work, a number of commenters
questioned whether such an incentive exists (see, e.g., Exs. 15: 13,
26, 27, 39, 79, 136, 137, 141, 156, 181, 199, 218, 224, 229, 242, 263,
266, 269, 270, 278, 283, 341, 364, 377, 409, 426, 434, 440). For
example, the United Technologies Company (UTC) stated that "[U]TC does not
believe that the recording or not recording of restricted days will
influence management's decision to temporarily assign employees to
restricted work. The decision to place an employee on restricted work
is driven by workers' compensation costs rather than OSHA incidence
rates" (Ex. 15: 440). The American Textile Manufacturers Association
(ATMI) agreed:

[A]TMI believes that this will not provide an incentive for
employers to temporarily assign injured or ill workers to jobs with
little or no productive value to avoid recording a case as one
involving days away from work. The restricted work activity day
count is in no way related to an employer wanting to avoid having
days away from work. Workers' compensation claims and, for the most
part, company safety awards are based on the number of "lost-time
accidents." The counting of restricted work days has never been an
incentive or disincentive for these two key employer safety measures
and ATMI believes that this will not change. (Ex. 15: 156)

In the final rule, OSHA has decided to require employers to record
the number of days of restriction or transfer on the OSHA 300 Log. From
the comments received, and based on OSHA's own experience, the Agency
finds that counts of restricted days are a useful and needed measure of
injury and illness severity. OSHA's decision to require the recording
of restricted and transferred work cases on the Log was also influenced
by the trend toward restricted work and away from days away from work.
In a recent article, the BLS noted that occupational injuries and
illnesses are more likely to result in days of restricted work than was
the case in the past. From 1978 to 1986, the annual rate in private
industry for cases involving only restricted work remained constant, at
0.3 cases per 100 full-time workers. Since 1986, the rate has risen
steadily to 1.2 cases per 100 workers in 1997, a fourfold increase. At
the same time, cases with days away from work declined from 3.3 in 1986
to 2.1 in 1997 (Monthly Labor Review, June 1999, Vol. 122. No. 6, pp.
11-17). It is clear that employers have caused this shift by modifying
their return-to-work policies and offering more restricted work
opportunities to injured or ill employees. Therefore, in order to get
an accurate picture of the extent of occupational injuries and
illnesses, it is necessary for the OSHA Log to capture counts of days
away from work and days of job transfer or restriction.

The final rule thus carries forward OSHA's longstanding requirement
for employers to count and record the number of restricted days on the
OSHA Log. On the Log, restricted work counts are separated from days
away from work counts, and the term "lost workday" is no longer used.
OSHA believes that the burden on employers of counting these days will
be reduced somewhat by the simplified definition of restricted work,
the counting of calendar days rather than work days, capping of the
counts at 180 days, and allowing the employer to stop counting
restricted days when the employees job has been permanently modified to
eliminate the routine job functions being restricted (see the preamble
discussion for 1904.7 General Recording Criteria).

Separate 300 Log Data on Occupational Injury and Occupational Illness

OSHA proposed (61 FR 4036-4037) to eliminate any differences in the
way occupational injuries, as opposed to occupational illnesses, were
recorded on the forms. The proposed approach would not, as many
commenters believed, have made it impossible to determine the types and
number of cases of occupational illnesses at the aggregated national
level, although it would have eliminated the distinction between
injuries and illnesses at the individual establishment level. In other
words, the proposed approach would have involved a coding system that
the BLS could use to project the incidences of several types of
occupational illnesses nationally, but would not have permitted
individual employers to calculate the incidence of illness cases at
their establishments.

Many commenters reacted with concern to the proposal to eliminate,
for recording purposes, the distinction between occupational injuries
and occupational illnesses, and to delete the columns on the Log used
to record specific categories of illnesses (see, e.g., Exs. 15: 213,
288, 359, 369, 407, 418, 429, 438). For example, Con Edison stated that
"Distinguishing between injuries and illness is a fundamental and
essential part of recordkeeping" (Ex. 15: 21), and the National
Institute for Occupational Safety and Health (NIOSH) discussed the
potentially detrimental effects on the Nation's occupational injury and
illness statistics of such a move, stating "For occupational health
surveillance purposes * * * NIOSH recommends that entries on the OSHA
log continue to be categorized separately as illnesses and injuries"
(Ex. 15: 407).

Many commenters also criticized OSHA's proposal to delete from the
Log the separate columns for 7 categories of occupational illnesses
(see, e.g., Exs. 20, 35, 15: 27, 283, 371). These commenters pointed
out that these categories of illnesses have been part of the
recordkeeping system for many years and that they captured data on
illness cases in 7 categories: occupational skin diseases or disorders,
dust diseases of the lungs, respiratory conditions due to toxic agents,
poisoning (systemic effects of toxic materials), disorders due to
physical agents, disorders associated with repeated trauma, and all
other occupational illnesses. Typical of the views of commenters
concerned about the proposal to delete these columns from the Log was
the comment of the United Auto Workers: "OSHA should abandon the plan
to change the OSHA 200 form to eliminate illness categories. The
illness categories in the summary presently provide critically
necessary information about cumulative trauma disorders, and useful
information about respiratory conditions" (Ex: 15: 348).

Several commenters supported the proposed concept of adding a
single column to the form on which employers would enter illness codes
that would correspond to the illness conditions listed in proposed
Appendix B, which could then be decoded by government classifiers to
project national illness incidence rates for coded conditions (see,
e.g., Exs. 20, 15: 27, 369, 371). For example, the United Brotherhood
of Carpenters and Joiners of America stated:

After a thorough review of the comments in the record, however,
OSHA has concluded that the proposed approach, which would have
eliminated, for recording purposes, the distinction between work-related injuries and illnesses, is not workable in the final rule. The
Agency finds that there is a continuing need for separately
identifiable information on occupational illnesses and injuries, as
well as on certain specific categories of occupational illnesses. The
published BLS statistics have included separate estimates of the rate
and number of occupational injuries and illnesses for many years, as
well as the rate and number of different types of occupational
illnesses, and employers, employees, the government, and the public
have found this information useful and worthwhile. Separate illness
and injury data are particularly useful at the establishment level,
where employers and employees can use them to evaluate the
establishment's health experience and compare it to the national
experience or to the experience of other employers in their industry or
their own prior experience. The data are also useful to OSHA personnel
performing worksite inspections, who can use this information to
identify potential health hazards at the establishment.

Under the final rule, the OSHA 300 form has therefore been modified
specifically to collect information on five types of occupational
health conditions: musculoskeletal disorders, skin diseases or
disorders, respiratory conditions, poisoning, and hearing loss. There
is also an "all other illness" column on the Log. To record cases
falling into one of these categories, the employer simply enters a
check mark in the appropriate column, which will allow these cases to
be separately counted to generate establishment-level summary
information at the end of the year.

OSHA rejected the option suggested by the UBC and others (see,
e.g., Exs. 20, 15: 27, 369, 371) -- to add a single column that would
include a code for different types of conditions -- because such an
approach could require employers to scan and separately tally entries
from the column to determine the total number of each kind of illness
case, an additional step that OSHA believes would be unduly burdensome.
Because the scanning and tallying are complex, this approach also would
be likely to result in computational errors.

In the final rule, two of the illness case columns on the OSHA 300
Log are identical to those on the former OSHA Log: a column to capture
cases of skin diseases or disorders and one to capture cases of
systemic poisoning. The single column for respiratory conditions on the
new OSHA Form 300 will capture data on respiratory conditions that were
formerly captured in two separate columns, i.e., the columns for
respiratory conditions due to toxic agents (formerly column 7c) and for
dust diseases of the lungs (formerly column 7b). Column 7g of the
former OSHA Log provided space for data on all other occupational
illnesses, and that column has also been continued on the new OSHA 300
Log. On the other hand, column 7e from the former OSHA Log, which
captured cases of disorders due to physical agents, is not included on
the new OSHA Log form. The cases recorded in former column 7e primarily
addressed heat and cold disorders, such as heat stroke and hypothermia;
hyperbaric effects, such as caisson disease; and the effects of
radiation, including occupational illnesses caused by x-ray exposure,
sun exposure and welder's flash. Because space on the form is at a
premium, and because column 7e was not used extensively in the past
(recorded column 7e cases accounted only for approximately five percent
of all occupational illness cases), OSHA has not continued this column
on the new OSHA 300 Log.

OSHA has, however, added a new column specifically to capture
hearing loss cases on the OSHA 300 Log. The former Log included a
column devoted to repeated trauma cases, which were defined as
including noise-induced hearing loss cases as well as cases involving a
variety of other conditions, including certain musculoskeletal
disorders. Several commenters recommended that separate data be
collected on hearing loss (see, e.g., Exs. 20, 53X, p.76, 15: 31).
Dedicating a column to occupational hearing loss cases will provide a
valuable new source of information on this prevalent and often
disabling condition. Although precise estimates of the number of noise-exposed workers vary widely by industry and the definition of noise
dose used, the EPA estimated in 1981 that about 9 million workers in
the manufacturing sector alone were occupationally exposed to noise
levels above 85 dBA. Recent risk estimates suggest that exposure to
this level of noise over a working lifetime would cause material
hearing impairment in about 9 percent, or approximately 720,000, U.S.
workers (NIOSH, 1998). A separate column for occupational hearing loss
is also appropriate because the BLS occupational injury and illness
statistics only report detailed injury characteristics information for
those illness cases that result in days away from work. Because most
hearing loss cases do not result in time off the job, the extent of
occupational hearing loss has not previously been accurately reflected
in the national statistics. By creating a separate column for
occupational hearing loss cases, and clearly articulating in section
1904.10 of the final rule the level of hearing loss that must be
recorded, OSHA believes that the recordkeeping system will, in the
future, provide accurate estimates of the incidence of work-related
loss of hearing among America's workers.

Column on the Log for Musculoskeletal Disorders

Column 7f of the former Log also was intended to capture cases
involving repetitive motion conditions, such as carpal tunnel syndrome,
tendinitis, etc. These conditions have been called by many names,
including repetitive stress injuries, cumulative trauma disorders, and
overuse injuries. OSHA has decided to include a separate column on the
Log for musculoskeletal disorders (MSDs), the preferred term for
injuries and illnesses of the muscles, nerves, tendons, ligaments,
joints, cartilage and spinal discs, including those of the upper
extremities, lower extremities, and back. Many MSDs are caused by
workplace risk factors, such as lifting, repetitive motion, vibration,
overexertion, contact stress, awkward or static postures, and/or
excessive force. The repeated trauma column on the former OSHA Log did
not permit an accurate count of musculoskeletal disorders, both because
other conditions, such as occupational hearing loss, were included in
the definition of repeated trauma and because many musculoskeletal
disorders -- including lower back injuries -- were excluded. The column was
limited to disorders classified as illnesses, but OSHA instructed
employers to record all back cases as injuries rather than illnesses,
even though back disorders are frequently associated with exposure to
occupational stresses over time (Ex. 2, p. 38).

In its proposal, OSHA asked for comment on the need for a separate
column containing information on musculoskeletal disorder (MSD) cases
such as low back pain, tendinitis and carpal tunnel syndrome. OSHA
received numerous comments opposing the addition of an MSD column to
the Log (see, e.g., Exs. 15: 9, 60, 78, 105, 122, 136, 137, 141, 201,
218, 221, 224, 266, 278, 305, 308, 318, 346, 395, 397, 406, 414, 430).
These commenters objected on several grounds: because they believed
that including such a column would make the forms more complex (Ex. 15:
414), because the column would have "no utility" (Ex. 15: 397), or
because the column would only capture a small percentage of total MSD
cases (Ex. 15: 210). Several commenters objected because they believed
that an MSD column would duplicate information already obtained through
the case description (see, e.g., Exs. 15: 9, 105, 210, 221, 406). For
example, the law firm of Ogletree, Deakins, Nash, Smoak & Stewart
offered comments on behalf of a group of employers known as the ODNSS
Coalition, remarking that "The log and system of OSHA recordkeeping
would not benefit from a separate column for musculoskeletal disorders.
The proposed rules for recording these disorders are clear, and
the revisions to the "case description" column appearing on the OSHA
Form 300 provide for the ample identification of the disorders, which
will enable all interested parties to track and analyze entries of that
nature" (Ex. 15: 406). Another group of commenters contended that a
separate MSD column would result in an inaccurate picture of MSD
incidence because the numbers recorded would increase as a result of
the inclusion of lower back MSDs in the cases to be entered in the
column (see, e.g., Exs. 15: 305, 308, 318, 346). Representative of
these comments is one from the National Association of Manufacturers
(NAM):

Given the over-inclusive definitions of the terms "work-related," "injury or illness," "medical treatment" and "MSDs"
(in Appendix B), and the fact that, for the first time, back
injuries would be included as MSDs, we strongly objected to that
idea. Under that approach, the MSD numbers probably would have been
huge, would have painted a grossly inaccurate and misleading picture
as to the current prevalence of MSDs, and would have been cited as
justification for an ergonomics standard. Unless and until those
deficiencies are completely eliminated, the NAM remains unalterably
opposed to the inclusion of an MSD column on the OSHA Form 300 (Ex.
15: 305).

Of key concern to our membership is the lack of any
categorization for musculoskeletal disorders (MSD). A major concern
in meatpacking and poultry plants, our committees will now be forced
to spend endless hours poring over the logs, reading each individual
definition and deciding whether it is a MSD. The logs are often hand
written and xerox copies of these are difficult to read. This is a
real burden for workers, companies, joint committees and anyone
using the logs (Ex. 15: 371).

After a thorough review of the record, and extensive consultation
with NIOSH and the BLS to establish the need for such statistics, OSHA
has concluded that including a separate column on the final OSHA 300
Log for MSD cases is essential to obtain an accurate picture of the MSD
problem in the United States. In 1997, more than 600,000 MSDs resulting
in days away from work were reported to the BLS by employers, although
determining this number has required close cooperation between OSHA and
the BLS and several "special runs" by the BLS (i.e., computer
analyses performed especially for OSHA) (see on the Internet at ftp://
146.142.4.23/pub/special.requests/ocwc/osh/). OSHA believes that such a
column on the OSHA 300 Log will not only permit more complete and
accurate reporting of these disorders and provide information on the
overall incidence of MSDs in the workplace, it will provide a useful
analytical tool at the establishment level. OSHA recognizes that the
column will add some complexity to the form, but believes that the
additional complexity will be more than offset by the fact that all
recordable MSDs will be captured in a single entry on the Log. Thus,
the total count of cases in the MSD column will allow employers,
employees, authorized representatives, and government representatives
to determine, at a glance, what the incidence of these disorders in the
establishment is. OSHA does not agree with those commenters who stated
that entries in the MSD column will duplicate information recorded in
the injury/illness description; the case description column will
include additional information, e.g., on the particular type of MSD
(back strain, carpal tunnel syndrome, wrist pain, tendinitis, etc.).

OSHA also does not agree with those commenters who argued that
including a separate column for MSDs would introduce error into the
national statistics on the incidence of MSDs. The views of these
commenters are not persuasive because the number of reportable lost-workday MSDs is already being captured in national statistics, albeit
under two categories ("injuries" and "illnesses") that are
difficult to interpret. In response to comments that including a
separate column on the Log will provide OSHA with "justification for
an ergonomics standard," the Agency notes that it has already
developed and proposed an ergonomics standard despite the absence of a
single MSD column on employers' Logs.

Miscellaneous 300 Form Issues

The proposed OSHA Form 300 contained a column designated as the
"Employer Use" column. Many employers keep two sets of injury and
illness records; one for OSHA Part 1904 purposes and another for
internal safety management system purposes. OSHA envisioned that the
proposed Employer Use column would be used to tailor the Log to meet
the needs of the establishment's particular safety and health program
and reduce the practice some employers have adopted of keeping multiple
sets of occupational injury and illness records for various purposes.
For example, OSHA envisioned that an employer could enter codes in this
column to collect data on occupational injuries and illnesses beyond
what is required by the OSHA Part 1904 regulation, such as the results
of accident investigations, whether the case was accepted by workers'
compensation, or whether or not the employee was hospitalized for
treatment.

A number of commenters supported the proposed Employer Use column
(see, e.g., Exs. 15: 87, 136, 137, 141, 170, 224, 266, 278, 359). Some
stated that employers could utilize the column to identify cases based
on specific criteria that could be used in their internal safety and
health evaluations (see, e.g., Exs. 15: 136, 137, 141, 170, 224, 266,
278, 359). For example, the National Safety Council stated "The
Council believes that adding the employer use column to the log will
effectively reduce the adverse effects of accountability systems. This
will allow employers to identify cases for which supervisors and
managers should be held accountable, using company specific criteria"
(Ex. 15: 359, p. 14). Another commenter, Kathy Mull, stated "The
comment on possible use of the 'employer use column' to note cases not
included in internal safety statistics is a possible mechanism to defer
pressures on internal performance measures as tied strictly to OSHA
recordkeeping" (Ex. 15: 278, p. 4).

Several commenters opposed the addition to the Log of an Employer
Use column, however (see, e.g., Exs. 15: 28, 82, 109, 132, 375). Among
these was the American Petroleum Institute, which stated "If the
revised regulation meets API's recommended system objectives, the
'employer use' column would not be needed. Cases recorded would then be
credible, reasonable and meaningful to employers, employees (and to
OSHA). * * * OSHA should consider the employer as the primary user of
the system" (Ex. 15: 375A, p. 55). Commenters also expressed concern
that an Employer Use column could have a negative effect on the use of
the data. For example, the Sherman Williams Company stated "It is not
necessary to provide column j, for "other" information that may be
provided by the employer. It will lead to inconsistent utilization of
the proposed form. Delete column j of the proposed Form 300" (Ex. 15:
132, p. 1).

Several other commenters argued for the addition of new data
requirements to the OSHA 300 Log, as follows:

Commenter

Suggested addition to the 300 Log

G. Neil Companies (Ex. 15: 29)

Information explaining which employers must keep the Log should be added to the form

Atlantic Dry Dock Corp. (Ex. 15: 179)

A line to carry over the totals from previous page should be added at the top of the form

Maine Department of Labor (Ex. 15: 41)

The form should include three columns forcase type: a column for days away only, a column for days away and restricted, and a column for restricted only to differentiate the three different types of cases

Ford Motor Company (Ex. 15: 347)

"To facilitate identification, Ford proposes that the employee's last four numbers of his or her social security number be included on the OSHA 300 and 301 Forms * * * The last four numbers of the social security number will greatly assist in employee identification and at the same time offer some measure of confidentiality."

American Trucking Associations (Ex. 15: 397)

"OSHA should add a new column to the proposed OSHA 300 form allowing employers to indicate whether an injury occurred off-site. This recommendation is not novel [ ] the current OSHA 101 form asks if the injury or illness occurred on the employer's premises * * * the inclusion of the 'off-site' column is crucial in determining which fixed facilities maintain abnormally high rates of workplace injuries/illnesses. In addition, this recommendation furthers the goal of requiring motor carriers to record injuries and illnesses to their employees as well as provides valuable information to OSHA and others regarding the employer's lack of control over the site of the injury."

OSHA has not added the fields or columns suggested by commenters to
the final 300 or 301 forms because the available space on the form has
been allocated to other data that OSHA considers more valuable. In
addition, there is no requirement in the final rule for employers to
enter any part of an employee's social security number because of the
special privacy concerns that would be associated with that entry and
employee access to the forms. However, employers are, of course, free
to collect additional data on occupational injury and illness beyond
the data required by the Agency's Part 1904 regulation.

The OSHA 301 Form

Although the final OSHA 300 Log presents information on injuries
and illnesses in a condensed format, the final OSHA 301 Incident Record
allows space for employers to provide more detailed information about
the affected worker, the injury or illness, the workplace factors
associated with the accident, and a brief description of how the injury
or illness occurred. Many employers use an equivalent workers'
compensation form or internal reporting form for the purpose of
recording more detailed information on each case, and this practice is
allowed under paragraph 1904.29(b)(4) of the final rule.

The OSHA Form 301 differs in several ways from the former OSHA 101
form it replaces, although much of the information is the same as the
information on the former 101 Form, although it has been reworded and
reformatted for clarity and simplicity. The final Form 301 does not
require the following data items that were included on the former OSHA
101 to be recorded:

-- The employer name and address;

-- Employee social security number;

-- Employee occupation;

-- Department where employee normally works;

-- Place of accident;

-- Whether the accident occurred on the employer's premises; and

-- Name and address of hospital.

OSHA's reasons for deleting these data items from the final 301
form is that most are included on the OSHA Form 300 and are therefore
not necessary on the 301 form. Eliminating duplicate information
between the two forms decreases the redundancy of the data collected
and the burden on employers of recording the data twice. The employee
social security number has been removed for privacy reasons. OSHA
believes that the information found in several other data fields on the
301 Form (e.g., the employee's name, address, and date of birth)
provides sufficient information to identify injured or ill individuals
while protecting the confidentiality of social security numbers.

OSHA has also added several items to the OSHA Form 301 that were
not on the former OSHA No. 101:

-- The date the employee was hired;

-- The time the employee began work;

-- The time the event occurred;

-- Whether the employee was treated at an emergency room; and

-- Whether the employee was hospitalized overnight as an in-patient (the
form now requires a check box entry rather than the name and address of
the hospital).

OSHA concludes that these data fields will provide safety and
health professionals and researchers with important information
regarding the occurrence of occupational injuries and illnesses. The
questions pertaining to what the employee was doing, how the injury or
illness occurred, what the injury or illness was, and what object or
substance was involved have been reworded somewhat from those contained
on the former OSHA No. 101, but do not require employers or employees
to provide additional information.

Proposed Form 301

The proposed OSHA 301 Injury and Illness Incident Record differed
in minor respects from the former OSHA 101. For example, a number of
fields would have been eliminated to reduce redundancy between the Log
and the Incident Report, and several items would have been added to the
Incident Report to obtain additional information about occupational
injuries and illnesses. OSHA proposed to add to the Form 301 the
following:

-- The date the employee was hired;

-- The time the employee began work;

-- The time the event occurred;

-- Whether the employee was treated at an emergency room;

-- Whether the employee was hospitalized overnight as an in-patient;

-- The equipment, materials or chemicals the employee was using when the event occurred; and

-- The activity the employee was engaged in when the event occurred.

In addition, the proposed regulation would have required the
employer to ask several questions (questions 16 through 18) in the same
order and using the same language as used on the OSHA forms, in order
to obtain more consistent and accurate data about these data items.

A number of commenters approved of the proposed Form 301 (see,
e.g., Exs. 21; 15: 32, 153, 246, 324, 369, 374, 380, 396, 427, 441).
For example, the International Brotherhood of Teamsters (Ex. 15: 369)
stated that the union "[s]upports the [proposed] modifications of the
OSHA Injury and Illness Incident Record (OSHA Form 301) to collect more
useful information." Other commenters preferred the former OSHA 101
form and urged OSHA to retain it (see, e.g., Exs. 15: 47, 48, 122, 242).
For example, the Boiling Springs Fire District (Ex. 15: 47) opposed any
changes to the Log or 101 forms, stating "[W]e like the forms we are
presently using and feel that the information in these forms is adequate.
I am a great believer in the old saying 'if it is not broke -- why fix it'?"

Many of the commenters who specifically addressed the proposed 301
form were concerned about the privacy implications of providing
employees, former employees, and employee representatives with access
to the OSHA 301 forms. These concerns are addressed in detail in the
section of this summary and explanation associated with section
1904.35, Employee involvement. Many other commenters were concerned
with the use of equivalent forms (discussed above) and with the
requirement to ask certain questions in the same order and using the
same language (also discussed above). The remaining comments relating
to the proposed forms are grouped into three categories: comments about
the proposed case detail questions (proposed questions 9, 10, 16, 17
and18) and the data they would collect; the other fields OSHA proposed
to add to the form 101/301; and comments urging the Agency to place
additional data fields on the 301 form.

OSHA proposed to include five questions on the final OSHA 301 form
to gather information about the details of each work-related injury or
illness case:

-- Proposed question 9 asked for information about the specific injury
or illness (e.g., second degree burn or toxic hepatitis);

-- Proposed question 10 asked for information on the body part or parts
affected (e.g., lower right forearm);

-- Proposed question 16 asked for information on all equipment,
materials or chemicals the employee was using when the event occurred;

-- Proposed question 17 asked for information on the specific activity
the employee was engaged in when the event occurred;

-- Proposed question 18 asked for information on how the injury or
illness occurred, including a description of the sequence of events
that led up to the incident and the objects or substances that directly
injured or made the employee ill.

OSHA received only one comment about the contents of the proposed
questions: George R. Cook, Jr., of the Hearing Conservation Services
Company, stated:

Questions 9, 10, and 16 on the OSHA 301 form should be worded so
that the combination of the answers to these three questions could
be used as the answer to Question F. on the OSHA 300. Therefore, if
a form 301 is filled out in computerized form, that information
could then be carried over to the form 300 thus eliminating the need
for duplicate entry (Ex. 15: 188).

As discussed above, final Form 301 no longer requires the employer
to include these questions on any equivalent form in the same format or
language as that used by the OSHA 301 form. However, any employer
wishing to take the approach suggested by Mr. Cook is free to do so.

Several commenters objected to proposed question 16 and questioned
why information on all of the materials, equipment or chemicals the
employee was using when the event occurred was needed (see, e.g., Exs.
15: 35, 205, 318, 334, 375, 424). For example, the Chocolate
Manufacturers Association and the National Confectioners Association,
in a joint comment (Ex. 15: 318, p. 9) , stated:

[W]e strongly disagree with the approach reflected in Question
16. We believe the additional information sought by Question 16 (and
not by Question 18) is irrelevant and would not, in any event,
justify a second set of reporting forms for every recordable
incident subject to federal or state OSHA jurisdiction. Requiring a
listing of "all" equipment, materials or chemicals an employee
might have been using -- without regard to whether they contributed to
the injury or illness -- would serve no useful purpose.

OSHA agrees with this assessment and has not included this question
from the final 301 form.

The final form solicits information only on the object or substance
that directly harmed the employee. The final 301 form contains four
questions eliciting case detail information (i.e., what was the
employee doing just before the incident occurred?, what happened?, what
was the injury or illness?, and what object or substance directly
harmed the employee?). The language of these questions on the final 301
form has been modified slightly from that used in the proposed
questions to be consistent with the language used on the BLS Survey of
Occupational Injuries and Illnesses collection form. The BLS performed
extensive testing of the language used in these questions while
developing its survey form and has subsequently used these questions to
collect data for many years. The BLS has found that the order in which
these questions are presented and the wording of the questions on the
survey form elicit the most complete answers to the relevant questions.
OSHA believes that using the time-tested language and ordering of these
four questions will have the same benefits for employers using the OSHA
Form 301 as they have had for employers responding to the BLS Annual
Survey. Matching the BLS wording and order will also result in benefits
for those employers selected to participate in the BLS Annual Survey.
To complete the BLS survey forms, employers will only need to copy
information from the OSHA Injury and Illness Incident Report to the BLS
survey form. This should be easier and less confusing than researching
and rewording responses to the questions on two separate forms.

The Data Fields OSHA Proposed to Change on the Proposed 301 Form

Proposed field 5, Date hired. OSHA proposed to add this data field
to collect additional data about the work experience of the injured or
ill worker. Such data can be very useful for employers, employees, and
OSHA because it enables researchers to discover, for example, whether
newly hired or inexperienced workers experience relatively more
injuries and illnesses than more experienced workers. Several
commenters questioned the value of the data OSHA proposed to collect in
field 5 (see, e.g., Exs. 15: 151, 152, 179, 180, 201, 347, 409). For
example, Caterpillar Inc. (Ex. 15: 201) recommended that "[i]tem 5 of
Form 301 be deleted. The date hired is not a significant factor in
analyzing injury causation. If any similar data is necessary, it should
be the time on the current job, which is a better indicator of relative
job skills or work experience." Several commenters asked for
clarification of the "date hired" phrase (see, e.g., Exs. 15: 151,
152, 179, 180). For example, Atlantic Marine, Inc. (Ex. 15: 180) asked
"What date shall be recorded as the "Date Hired" if an employee is
laid off, is terminated, or resigns and then is rehired? Should the
date of initial hire or the date of rehire be recorded?'

OSHA continues to believe that the data gathered by means of the
"date hired" field will have value for analyzing occupational injury
and illness data and has therefore included this data field on the
final OSHA 301 form. These data are useful for analyzing the incidence
of occupational injury and illness among newly hired workers and those
with longer tenure. OSHA is aware that the data collected are not a
perfect measure of job experience because, for example, an employee
may have years of experience doing the same type of work for a previous
employer, and that prior experience will not be captured by this data
field. Another case where this data field may fail to capture perfect
data could occur in the case of an employee who has worked for the same
employer for many years but was only recently reassigned to new duties.
Despite cases such as these, inclusion of this data field on the Form
301 will allow the Agency to collect valid data on length of time on
the job for most employment situations.

For the relatively infrequent situation where employees are hired,
terminated, and then rehired, the employer can, at his or her
discretion, enter the date the employee was originally hired, or the
date of rehire.

Proposed field 6, Name of health care provider; proposed field 7,
If treatment off site, facility name and address; and proposed field 8,
Hospitalized overnight as in-patient? The former OSHA Form 101 included
similar data fields: former field 18 collected the "name and address
of physician," while former field 19 collected data on "if
hospitalized, name and address of hospital." Several commenters
discussed these data fields and questioned their usefulness for
analytical purposes (see, e.g., Exs. 15: 95, 151, 152, 179, 180, 347,
409). The Pacific Maritime Association (Ex. 15: 95) noted the
difficulty of collecting the data requested by proposed data fields 5,
6, 7, and 13 as they pertain to longshoremen:

Items 5, 6, 7, and 13 on the OSHA Form 301 presents problems for
direct employers of longshoremen. Longshoremen are hired on a daily
basis, select their own health care provider; may be treated at a
facility of their choice, and may not return to the same employer
when returning to work.

[I]tem 6, "Name of health care provider" is unclear in terms
of the general instructions. Who is considered the primary health
care provider? Is it the individual who sees the employee on the
initial medical visit, the individual who renders the majority of
care for a case, or the individual who renders care if the employee
is referred to an off-site provider on the initial visit? We feel
that the last choice is the correct response. We also question the
benefit of providing this information. The criteria for OSHA
recordability focuses on the care provided, and not on the
individual providing the care.

Item 7, "If treated off-site, facility name and address"
requires more specific instructions as to when this field must be
completed. Is this to be completed if the employee is referred to an
outside provider on the initial visit, or is this to be completed
should the individual be referred out later in the course of the
injury or illness? We feel that the former is the correct response.
We also question the benefit of providing this information.

OSHA has decided to continue to collect information on final Form
301 concerning the treatment provided to the employee (proposed data
field 7). OSHA's experience indicates that employers have not generally
had difficulty in providing this information, either in the longshoring
or any other industry. The data in this field is particularly useful to
an OSHA inspector needing additional information about the medical
condition of injured or ill employees. (OSHA does not request this
medical information without first obtaining a medical access order
under the provisions of 29 CFR part 1913, Rules Concerning OSHA Access
to Employee Medical Records.) The final OSHA 301 Form therefore
includes a data field for information on the off-site treating
facility.

The final 301 Form also includes a data field requesting the name
of the health care professional seen by the injured or ill employee.
The employer may enter the name either of the physician or other health
care professional who provided the initial treatment or the off-site
treatment. If OSHA needs additional data on this point, the records of
the health care professional listed will include both the name of the
referring physician or other health care professional as well as the
name of the health care professional to whom the employee was referred
for specialized treatment.

Several commenters asked OSHA to collect data on whether a
hospitalization involved in-patient treatment or was limited to out-patient treatment (see, e.g., Exs. 15: 151, 152, 179, 180). For
example, Alabama Shipyard, Inc. recommended "Instead of asking in
[proposed] item 8 if an employee is hospitalized overnight as in-patient, have a check box to record whether the treatment was as an in-patient or outpatient status" (Ex. 15: 152). OSHA agrees that the
additional information suggested by this commenter would be useful, and
final OSHA Form 301 asks two hospitalization-related questions: Was
employee treated in an emergency room?, and Was employee hospitalized
overnight as an in-patient?

Proposed question 13, date of return to work at full capacity: The
proposed Injury and Illness Incident Report (Form 301) contained a data
field requiring the date the employee returned to work at full capacity
if the case involved restricted work activity or days away from work.
This field was included to provide information regarding the length of
time the employee was partially or fully incapacitated by the injury or
illness. However, because the final rule requires employers to record
day counts both for cases involving days away from work and cases
involving job transfer or restriction (see discussion above), the date
at which an employee returned to work at full capacity field is no
longer necessary and does not appear on the final form.

Proposed questions 14, Time of event and 15, Time employee began
work: No commenter objected to the inclusion of proposed data field 14,
Time of event, and only two commenters objected to proposed data field
15, Time employee began work (see, e.g., Exs. 15: 347, 409). Both of
these commenters, the Ford Motor Company and the American Automobile
Manufacturers Association, stated that:

"Time employee began work," is of questionable benefit. Many
employees perform a variety of jobs during the day or may have their
job changed during the day (work added or subtracted). This question
is burdensome and offers little benefit for data analysis.

Several commenters discussed the way the proposed form collected
the new information on the time of the accident (see, e.g., Exs. 15:
151, 152, 179, 180, 260, 262, 265, 347, 401, 409). Several of these
commenters suggested that OSHA do away with the am/pm designation and
use a 24-hour clock instead (see, e.g., Exs. 15: 151, 152, 179, 180).
The comments of Atlantic Marine (Ex. 15: 152) are representative:

Change the form from using A.M. or P.M. to using a 24-hour
clock. A 24-hour clock is much easier to use in drawing conclusions
on the relationship between injuries/illnesses and the time of day
that they occurred. OSHA may find that many employers are currently
using a 24-hour clock system.

Another group of commenters suggested that OSHA add am/pm boxes the
employer could simply check off as an easier way to collect the data
(see, e.g., Exs. 15: 260, 262, 265, 401). For example, the Edison
Electric Institute (Ex. 15: 401) suggested that "Questions 14 and 15
should include a box which can be checked for AM and PM to reduce the
possibility that this information will be omitted."

OSHA has included on the final 301 form the two questions asking
for data on the time of the event and the time the employee began work
so that employers, employees and the government can obtain information
on the role fatigue plays in occupational injuries and illness. Both
questions (i.e., on time of event and time employee began work) must be
included to conduct this analysis. Thus, OSHA has included both fields
on the final Form 301. In addition, the form has been designed so that
the employer can simply circle the a.m. or p.m. designation. OSHA
believes that this approach will provide the simplest, least burdensome
method for capturing these data, and that using a 24 hour clock system
would be cumbersome or confusing for most employers.

Data fields for the name and phone number of the person completing
the form. Both the former and proposed Incident Report forms included
fields designed to obtain information on the person who completed the
form. The former OSHA 101 form asked for the date of report, the name
of the preparer, and that person's official position. The proposed form
would have carried forward the name and title of the preparer and the
date, and added the person's phone number. OSHA received very little
comment on these proposed data fields. The Ford Motor Company (Ex. 15:
347) and the American Automobile Manufacturers Association (Ex. 15:
409) both made the following comment:

The "Completed by" field could be modified to consolidate name
and title. This would be consistent with the manner in which most
health care professionals routinely sign their name.

The "Phone number required" item should refer to the medical
department's number or the general number of the establishment, and
be included with the establishment's name and address at the top of
the form. This would decrease the paperwork burden by allowing the
use of a stamp or a pre-typed format as opposed to completing a
phone number on each OSHA Form 301.

The final OSHA Form 301 permits the employer to include the name
and title in either field, as long as the information is available. As
to the phone number, the employer may use whatever number is
appropriate that would allow a government representative accessing the
data to contact the individual who prepared the form.

Case File number: The former OSHA 101 form did not include a method
for linking the OSHA 300 and 301 forms. Any linking had to be
accomplished via the employee's name, department, occupation, and the
other information from the forms. OSHA proposed to add a field to the
OSHA 301 form that would use the same case number as that on the OSHA
300 form, thus making it easier for employers, employees and government
representatives to match the data from the two forms. Two commenters
objected to the addition of such a case file number (Exs. 15: 217,
334). The American Forest & Paper Association (AF&PA) argued:

Another issue of concern to AF&PA is the requirement for a
unique case or file number on the Form 300 and Form 301 to
facilitate cross-referencing between the forms. We believe there is
sufficient data (employee name, date of birth, date of injury) on
all existing state First Report of Injury forms to readily cross-reference the First Report to the entry on the Form 300. A uniform
requirement for employers to create an indexing system would serve
no useful purpose. Furthermore, it would be unduly burdensome for
many affected companies except in those cases when there is a reason
to maintain the confidentiality of the affected employee's name (Ex.
15: 334).

OSHA continues to believe that easy linkage of the Forms 300 and
301 will be beneficial to all users of these data. Thus, the final Form
301 contains a space for the case file number. The file/case number is
required on both forms to allow persons reviewing the forms to match an
individual OSHA Form 301 with a specific entry on the OSHA Form 300.
Access by authorized employee representatives to the information
contained on the OSHA Form 301 is limited to the information on the
right side of the form (see § 1904.35(b)(2)(v)(B) of the final
rule). The case/file number is the data element that makes a link to
the OSHA Form 300 possible. OSHA believes that this requirement will
add very little burden to the recordkeeping process, because the OSHA
Log has always required a unique file or case number. The final Form
301 requirement simply requires the employer to place the same number
on the OSHA 301 form.

Suggested Fields

Commenters submitted suggestions for other data fields that they
believed should be included on the OSHA Form 301, as follows.

Commenter(s)

Suggested addition to the 301 incident report, and OSHA response

American Industrial Hygiene Association(AIHA) (Ex. 15: 153).

"AIHA suggests a corrective (AIHA) (Ex. 15: 153). action box on the OSHA 301. This form is often used as an employer's accident report, and this would encourage employers to seek action as appropriate to prevent reoccurrence."

OSHA has not included this suggested change because the 301 form is not designed to be an accident investigation form, but is used to gather information on occupational injuries and illnesses. Corrective actions would thus not be an appropriate data field for this form.

(Exs. 15: 179, 180, 151, 152).

"A space is needed for recording an employee identification number. This number is important for maintaining records. Some employers use the employee's social security number, while others have a unique, employer generated identifier for each employee."

.................

OSHA believes the combination of other data fields (case number, employee name, address and date of birth) provides the user the ability to identify individuals when necessary.

Ogletree, Deakins, Nash, Smoak & Stewart (Ex. 15: 406).

Substituting "regular job title" would provide for effective use of Form 301 in conducting safety and health analysis of the workplace.

The OSHA 300 Log asks for the employee's job title. OSHA does not believe there is a need to ask for the data on both forms.

American Petroleum Institute (Ex. 15: 375).

"[t]he supplemental data should contain all information necessary to make recordkeeping decisions, and to facilitate certification of the logs at year end. For this reason, the following should be added to what OSHA proposes for the supplemental data: company name, establishment name, employee social security number, regular job title, "new injury or illness?", "loss of consciousness?", days away from work, first date absent, est. duration of absence, "date days-away cases returned to work?," "result in restricted activity?", "job transfer?", "termination of employment?"

OSHA has not included these data fields on the final form because the Agency believes that doing so would duplicate the information on the OSHA 300 form. There is also no need to use the OSHA 301 form to document all the employer's recordkeeping decisions.

Ford Motor Company and the American Automobile Manufacturers Association (Exs. 15: 347, 409).

"AAMA proposes the OSHA Form 301 include the establishment name and address at the top of the form. This will assist not only the employer, but OSHA as well, to avoid any confusion over records in which one medical department may serve several establishments. Also, it will be helpful in those cases where a company employee, who works predominately at one particular facility, sustains an injury or illness at another company establishment."

The establishment name and location are included on the OSHA Form 300. In an effort to identify and eliminate duplication of data, OSHA has not included this data item on the OSHA Form 301.

Building and Construction TradesAFL-CIO (Ex.15: 394).

For every potentially Department, AFL-CIO (Ex.15: 394). recordable injury or illness, the employer shall record: case number, date case reported and name of employee.
-- Job title of employee.
-- Date of injury or illness.
-- Time of event or exposure.
-- Time employee began work.
-- Specific description of injury or illness.
-- Location where the accident or exposure occurred (e.g. loading dock).
-- Facility or Project (e.g. Hackensack factory, or Dreamwood Subdevelopment).
-- Body part affected.
-- Equipment, tools, materials, or chemicals being used.
-- Specific activity when injured or upon onset of illness.
-- How injury or illness occurred.

OSHA notes that the final OSHA 301 form contains many of these data elements. The Agency believes that the remaining fields are unnecessary or duplicative of information already found on the OSHA 300 Log.

Summary

The final forms employers will use to keep the records of those
occupational injuries and illnesses required by the final rule to be
recorded have been revised to reflect the changes made to the final
rule, the record evidence gathered in the course of this rulemaking,
and a number of changes designed to simplify recordkeeping for
employers. In addition, the forms have been revised to facilitate the
use of equivalent forms and employers' ability to computerize their
records.

Subpart D. Other OSHA injury and illness recordkeeping requirements

Subpart D of the final rule contains all of the 29 CFR Part 1904
requirements for keeping OSHA injury and illness records that do not
actually pertain to entering the injury and illness data on the forms.
The nine sections of Subpart D are:

-- Section 1904.30, which contains the requirements for dealing with
multiple business establishments;

-- Section 1904.31, which contains the requirements for determining
which employees' occupational injuries and illnesses must be recorded
by the employer;

-- Section 1904.32, which requires the employer to prepare and post the
annual summary;

-- Section 1904.33, which requires the employer to retain and update the
injury and illness records;

-- Section 1904.34, which requires the employer to transfer the records
if the business changes owners;

-- Section 1904.35, which includes requirements for employee
involvement, including employees' rights to access the OSHA injury and
illness information;

-- Section 1904.36, which prohibits an employer from discriminating
against employees for exercising their rights under the Act;

-- Section 1904.37, which sets out the state recordkeeping regulations
in OSHA approved State-Plan states; and

-- Section 1904.38, which explains how an employer may seek a variance
from the recordkeeping rule.

Section 1904.30 Multiple Establishments

Section 1904.30 covers the procedures for recording injuries and
illnesses occurring in separate establishments operated by the same
business. For many businesses, these provisions are irrelevant because
the business has only one establishment. However, many businesses have
two or more establishments, and thus need to know how to apply the
recordkeeping rule to multiple establishments. In particular, this
section applies to businesses where separate work sites create
confusion as to where injury and illness records should be kept and
when separate records must be kept for separate work locations, or
establishments. OSHA recognizes that the recordkeeping system must
accommodate operations of this type, and has adopted language in the
final rule to provide some flexibility for employers in the
construction, transportation, communications, electric and gas utility,
and sanitary services industries, as well as other employers with
geographically dispersed operations. The final rule provides, in part,
that operations are not considered separate establishments unless they
continue to be in operation for a year or more. This length-of-site-operation provision increases the chances of discovering patterns of
occupational injury and illness, eliminates the burden of creating OSHA
300 Logs for transient work sites, and ensures that useful records are
generated for more permanent facilities.

OSHA's proposed rule defined an establishment as a single physical
location that is in operation for 60 calendar days or longer (61 FR
4059), but did not provide specific provisions covering multiple
establishments. In the final rule, the definition of establishment
is included in Subpart G, Definitions.

The basic requirement of § 1904.30(a) of this final rule states
that employers are required to keep separate OSHA 300 Logs for each
establishment that is expected to be in business for one year or
longer. Paragraph 1904.30(b)(1) states that for short-term
establishments, i.e., those that will exist for less than a year,
employers are required to keep injury and illness records, but are not
required to keep separate OSHA 300 Logs. They may keep one OSHA 300 Log
covering all short-term establishments, or may include the short-term
establishment records in logs that cover individual company divisions
or geographic regions. For example, a construction company with multi-state operations might have separate OSHA 300 Logs for each state to
show the injuries and illnesses of its employees engaged in short-term
projects, as well as a separate OSHA 300 Log for each construction
project expected to last for more than one year. If the same company
had only one office location and none of its projects lasted for more
than one year, the company would only be required to have one OSHA 300
Log.

Paragraph 1904.30(b)(2) allows the employer to keep records for
separate establishments at the business' headquarters or another
central location, provided that information can be transmitted from the
establishment to headquarters or the central location within 7 days of
the occurrence of the injury or illness, and provided that the employer
is able to produce and send the OSHA records to each establishment when
§ 1904.35 or § 1904.40 requires such transmission. The sections
of the final rule are consistent with the corresponding provisions of
the proposed rule.

Paragraph 1904.30(b)(3) states that each employee must be linked,
for recordkeeping purposes, with one of the employer's establishments.
Any injuries or illnesses sustained by the employee must be recorded on
his or her home establishment's OSHA 300 Log, or on a general OSHA 300
Log for short-term establishments. This provision ensures that all
employees are included in a company's records. If the establishment is
in an industry classification partially exempted under § 1904.2 of
the final rule, records are not required. Under paragraph
1904.30(b)(4), if an employee is injured or made ill while visiting or
working at another of the employer's establishments, then the injury or
illness must be recorded on the 300 Log of the establishment at which
the injury or illness occurred.

How Long Must an Establishment Exist to Have a Separate OSHA Log

As previously stated, the final rule provides that an establishment
must be one that is expected to exist for a year or longer before a
separate OSHA log is required. Employers are permitted to keep separate
OSHA logs for shorter term establishments if they wish to do so, but
the rule does not require them to do so. This is a change from the
proposed rule, which would have required an establishment to be in
operation for 60 days to be considered an "establishment" for
recordkeeping purposes. The proposed 60-day threshold would have
changed the definition of "establishment" used in OSHA's former
recordkeeping rule, because that rule included a one-year-in-operation
threshold for defining a fixed establishment required to keep a
separate OSHA Log (Ex. 2, p. 21). The effect of the proposed change in
the threshold would have been to increase the number of short-duration
operations required to maintain separate injury and illnesses records.

[d]isagrees that sites in existence for as little as 60 days
need separate injury and illness records. The redefinition of
"establishment" will cause enormous problems for subcontractors in
a variety of construction industries. Even employers with small
workforces could be on the site of several projects at any one time,
and in the course of the year could have sent crews to hundreds of
sites. Though they may be on such sites for only brief periods of
time, they will be required under this proposal to create separate
logs for each site, increasing greatly their paperwork requirements
without increasing the amount of information available to their
employees (Ex. 15: 412).

In addition, many of these commenters argued that a 60-day
threshold would be especially burdensome because it would capture small
work sites where posting of the annual summary or mailing the summary
to employees would make little sense because so few cases would be
captured on each Log. The majority of these commenters suggested that
OSHA retain the former one-year duration threshold in the definition of
establishment (see, e.g., Exs. 15: 78, 123, 225, 254, 305, 356, 389,
404).

Other commenters expressed concern that the proposed 60-day
threshold would create an unreasonable burden on employers in service
industries like telecommunications and other utilities, whose employees
typically report to a fixed location, such as a service center or
garage, but perform tasks at transient locations that remain in
existence for more than 60 days. These commenters felt that classifying
such locations as "establishments" and creating thousands of new OSHA
Logs, would have "no benefit to anyone" (Ex. 15: 199) (see also Exs.
15: 65, 170, 213, 218, 332, 336, 409, 424).

In contrast, commenters who supported the 60-day threshold worried
that injuries and illnesses occurring at transient locations would
never be accounted for without such a provision (see, e.g., Exs. 15: 9,
133, 310, 369, 425). Some urged OSHA to adopt an even shorter time-in-operation threshold (see, e.g., Exs. 15: 369, 418, 429). For example,
the International Brotherhood of Teamsters (IBT) stated that they
"[w]ould strongly support reducing the requirement to thirty days to
cover many low level housing construction sites, and transient
operations, similar to mobile amusement parks" (Ex. 15: 369). The AFL-CIO agreed: "* * * the 60-day time period is still too long. We
believe that to truly capture a majority of these transient work sites,
a 30-day time period would be more realistic. A 30-day time period as
the trigger would capture construction activities such as trenching,
roofing, and painting projects which will continue to be missed if a
60-day time period is used" (Ex. 15: 418). OSHA agrees that under the
proposed provisions there was a potential for injuries and illnesses to
be missed at short term establishments and for employees who did not
report to fixed establishments. Therefore, §§ 1904.30(b)(1) and
(b)(3) have been added to make it clear that records (but not a
separate log) must be kept for short-term establishments lasting less
than one year, and that each employee must be linked to an
establishment.

The United Parcel Service (UPS) recommended that OSHA craft its
rule to coincide with a company's personnel records system, stating
"[t]he unit for which an employer maintains personnel records is
presumptively appropriate and efficient; accordingly, OSHA should not
mandate a rule that conflicts with a company's current personnel units
policy" (Ex. 15: 424). OSHA recognizes that employers would prefer
OSHA to allow companies to keep records in any way they choose. However,
OSHA believes that allowing each company to decide how and in what
format to keep injury and illness records would erode the value of the
injury and illness records in describing the safety and health experience
of individual workplaces and across different workplaces and industries.
OSHA has therefore decided not to adopt this approach in the final rule,
but to continue its longstanding requirement requiring records to be
kept by establishment.

OSHA has reviewed all of the comments on this issue and has
responded by deleting any reference to a time-in-operation threshold in
the definition of establishment but specifying a one-year threshold in
section 1904.30(a) of the final rule. OSHA finds, based on the record
evidence, that the one-year threshold will create useful records for
stable establishments without imposing an unnecessary burden on the
many establishments that remain in existence for only a few months.

Centralized Recordkeeping

As previously stated, the proposed rule did not include a specific
section covering multiple establishments. The proposal did require that
records for employees not reporting to any single establishment on a
regular basis should be kept at each transient work site, or at an
established central location, provided that records could be obtained
within 4 hours if requested as proposed.

Most commenters supported provisions that would allow the employer
to keep records at a centralized location (see, e.g., Exs. 20, 21, 15:
9, 38, 48, 136, 137, 141, 154, 173, 203, 213, 224, 234, 235, 254, 260,
262, 265, 266, 272, 277, 278, 288, 303, 321, 336, 350, 367, 373, 375,
401, 409). Many, however, disagreed with the requirement that records
be produced within 4 hours if requested by an authorized government
official. Those comments are discussed in the preamble for
§ 1904.40, Providing records to government representatives. The only
other concern commenters expressed about centralized recordkeeping was
that centralized records, like computerized records, would make it more
difficult for employees to access the records (see, e.g., Exs. 15:379,
380, 418, 438).

OSHA does not believe that centralization of the records will
compromise timely employee or government representative access to the
records. To ensure that this is the case, centralization under
§ 1904.30(b)(2) is allowed only if the employer can produce copies
of the forms when access to them is needed by a government
representative, an employee or former employee, or an employee
representative, as required by §§ 1904.35 and 40.

Recording Injuries and Illnesses Where They Occur

Proposed section 1904.7, Location of records, and section 1904.11,
Access to records, covered recordkeeping requirements for employees who
report to one establishment but are injured or made ill at other
locations of the same company. Specifically, these sections required
that records for employees reporting to a particular establishment but
becoming ill or injured at another establishment within the same
company be kept at the establishment in which they became injured or
ill. This was derived from OSHA's longstanding interpretation that
employees' cases should be recorded where they occur, if it is at a
company establishment (April 24, 1992 letter of interpretation to
Valorie A. Ferrara of Public Service Electric and Gas Company). Several
commenters objected to the proposed requirement that an employee's
injury or illness be recorded on the log of the establishment where the
injury occurred, rather than on the log of the establishment they
normally report to (see, e.g., Exs.15: 60, 107, 146, 184, 199, 200,
232, 242, 263, 269, 270, 329, 335, 343, 356, 375, 377). The comments of
the B.F. Goodrich Company (Ex. 15: 146) are representative:

[t]he requirement for a company to log a visiting employee's
injury or illness on the log of the company establishment that they
are visiting rather than on the log of their normal work
establishment, is not consistent with the data collection process.
As proposed, the rule requires the facility to record the injury or
illness and not the hours worked by the visiting employee. These
individuals would not normally be counted in the number of employees
at the visited site nor in the manhours worked at that site.
Recording of cases from visiting employees would improperly skew the
incidence rates of both facilities. This approach is particularly
inappropriate in the case of an illness, since the case may be a
result of accumulated exposures which have nothing to do with the
site visited during the onset of the illness. Alternately, an injury
or illness could manifest after the visitor leaves the facility.

OSHA disagrees with these commenters about where the injuries and
illnesses should be recorded. For the vast majority of cases, the place
where the injury or illness occurred is the most useful recording
location. The events or exposures that caused the case are most likely
to be present at that location, so the data are most useful for
analysis of that location's records. If the case is recorded at the
employee's home base, the injury or illness data have been disconnected
from the place where the case occurred, and where analysis of the data
may help reveal a workplace hazard. Therefore, OSHA finds that it is
most useful to record the injury or illness at the location where the
case occurred. Of course, if the injury or illness occurs at another
employer's workplace, or while the employee is in transit, the case
would be recorded on the OSHA 300 Log of the employee's home
establishment.

For cases of illness, two types of cases must be considered. The
first is the case of an illness condition caused by an acute, or short
term workplace exposure, such as skin rashes, respiratory ailments, and
heat disorders. These illnesses generally manifest themselves quickly
and can be linked to the workplace where they occur, which is no
different than most injury cases. For illnesses that are caused by
long-term exposures or which have long latency periods, the illness
will most likely be detected during a visit to a physician or other
health care professional, and the employee is most likely to report it
to his or her supervisor at the home work location.

Recording these injuries and illnesses could potentially present a
problem with incidence rate calculations. In many situations, visiting
employees are a minority of the workforce, their hours worked are
relatively inconsequential, and rates are thus unaffected to any
meaningful extent. However, if an employer relies on visiting labor to
perform a larger amount of the work, rates could be affected. In these
situations, the hours of these personnel should be added to the
establishment's hours of work for rate calculation purposes.

Section 1904.31 Covered employees

Final Rule Requirements and Legal Background

Section 1904.31 requires employers to record the injuries and
illnesses of all their employees, whether classified as labor,
executive, hourly, salaried, part-time, seasonal, or migrant workers.
The section also requires the employer to record the injuries and
illnesses of employees they supervise on a day-to-day basis, even if
these workers are not carried on the employer's payroll.

Implementing these requirements requires an understanding of the
Act's definitions of "employer" and "employee." The statute defines
"employer," in relevant part, to mean "a person engaged in a business
affecting interstate commerce who has employees." 29 U.S.C. 652 (5).
The term "person" includes "one or more individuals, partnerships,
associations, corporations, business trusts, legal representatives,
or any organized group of persons." 29 U.S.C. 652 (4). The term
"employee" means "an employee of an employer who is employed in a
business of his employer which affects interstate commerce." 29
U.S.C. 652(6). Thus, any individual or entity having an employment
relationship with even one worker is an employer for purposes of
this final rule, and must fulfill the recording requirements for
each employee.

The application of the coverage principles in this section presents
few issues for employees who are carried on the employer's payroll,
because the employment relationship is usually well established in
these cases. However, issues sometimes arise when an individual or
entity enters into a temporary relationship with a worker. The first
question is whether the worker is an employee of the hiring party. If
an employment relationship exists, even if temporary in duration, the
employee's injuries and illnesses must be recorded on the OSHA 300 Log
and 301 form. The second question, arising in connection with employees
provided by a temporary help service or leasing agency, is which
employer -- the host firm or the temporary help service -- is responsible
for recordkeeping.

Whether an employment relationship exists under the Act is
determined in accordance with established common law principles of
agency. At common law, a self-employed "independent contractor" is
not an employee; therefore, injuries and illnesses sustained by
independent contractors are not recordable under the final
Recordkeeping rule. To determine whether a hired party is an employee
or an independent contractor under the common law test, the hiring
party must consider a number of factors, including the degree of
control the hiring party asserts over the manner in which the work is
done, and the degree of skill and independent judgment the hired party
is expected to apply. Loomis Cabinet Co. v. OSHRC, 20 F.3d 938, 942
(9th Cir. 1994).

Other individuals, besides independent contractors, who are not
considered to be employees under the OSH Act are unpaid volunteers,
sole proprietors, partners, family members of farm employers, and
domestic workers in a residential setting. See 29 CFR § 1975.4(b)(2)
and § 1975.6 for a discussion of the latter two categories of
workers. As is the case with independent contractors, no employment
relationship exists between these individuals and the hiring party, and
consequently, no recording obligation arises.

A related coverage question sometimes arises when an employer
obtains labor from a temporary help service, employee leasing firm or
other personnel supply service. Frequently the temporary workers are on
the payroll of the temporary help service or leasing firm, but are
under the day-to-day supervision of the host party. In these cases,
Section 1904.31 places the recordkeeping obligation upon the host, or
utilizing, employer. The final rule's allocation of recordkeeping
responsibility to the host employer in these circumstances is
consistent with the Act for several reasons.

First, the host employer's exercise of day-to-day supervision of
the temporary workers and its control over the work environment
demonstrates a high degree of control over the temporary workers
consistent with the presence of an employment relationship at common
law. See Loomis Cabinet Co., 20 F.3d at 942. Thus, the temporary
workers will ordinarily be the employees of the party exercising day-to-day control over them, and the supervising party will be their
employer.

Even if daily supervision is not sufficient alone to establish that
the host party is the employer of the temporary workers, there are
other reasons for the final rule's allocation of recordkeeping
responsibility. Under the OSH Act, an employer's duties and
responsibilities are not limited only to his own employees. Cf.
Universal Constr. Co. v. OSHRC, 182 F.3d 726, 728-731 (10th Cir. 1999).
Assuming that the host is an employer under the Act (because it has an
employment relationship with someone) it reasonably should record the
injuries of all employees, whether or not its own, that it supervises
on a daily basis. This follows because the supervising employer is in
the best position to obtain the necessary injury and illness
information due to its control over the worksite and its familiarity
with the work tasks and the work environment. As discussed further
below, the final rule is sensible and will likely result in more
accurate and timely recordkeeping.

The Proposed Rule

The final rule's coverage rules are consistent with the basic
principles embodied in the former rule and in the proposal. The
proposed rule would have continued to require employers to record the
injuries and illnesses of employees over whose work they exert "day-to-day supervision" (61 FR 4058/3). OSHA proposed to codify this
longstanding interpretation by adding a definition of "employee"
together with a note explaining its application to Part 1904
recordkeeping. The proposed definition restated the definition of
employee in the OSH Act. It then explained that, for recordkeeping
purposes, an employer should consider as its employees any persons who
are supervised on a day-to-day basis at the establishment. The proposal
noted that this was the test regardless of whether the persons were
labeled as "independent contractors," "migrant workers," or workers
provided by a temporary help service.

The proposal further explained that day-to-day supervision occurs
"when, in addition to specifying the output, product or result to be
accomplished by the person's work, the employer supervises the details,
means, methods and processes by which the work is to be accomplished"
(61 FR 4059/1). OSHA also noted that other classes of workers would not
be covered because they were not considered employees, either as
defined in the OSH Act or as set forth in regulatory interpretations.
These included sole proprietors, partners, family members of farm
employers, and domestic workers in a residential setting.

Response To the Proposal

A number of commenters agreed with OSHA's approach to differentiate
between employees and true independent contractors, and to require
employers to keep records for employees they supervise on a day-to-day
basis (see, e.g., Exs. 15: 61, 65, 205, 305, 322, 333, 346, 348, 351,
369, 390, 429). The National Association of Manufacturers (NAM) stated:

[f]or purposes of recordkeeping, OSHA has consistently taken the
position that the term "employee" includes all personnel who are
supervised on a day-to-day basis by the employer using their
services (not only with respect to the result to be achieved, but
also the means, methods and processes by which the work is to be
accomplished). While this is a fact-intensive determination that
must be made on a case-by-case basis, we commend the Agency for
attempting to clarify the matter by making that approach an explicit
part of the rule, presumably for purposes of both recordkeeping and
records access (Ex. 15: 305).

The National Association of Temporary Staffing Services (NATSS))
supported:

[c]ontinuation of "utilizing employer" rule for maintaining
records for temporary employees. Temporary help and staffing service
firms recruit individuals with a broad range of training, education
and skills, and then assign them to work at customer locations on a
variety of assignments and projects. The fundamental nature of the
service relationship is such that while staffing service firms are
the general employers of their workers and assume a broad range of
employer responsibilities, those responsibilities generally do not
include direct supervision of the employees at the worksite. Hence,
staffing firms have a limited ability to affect conditions at the
worksite.

In recognition of the above, OSHA's long-standing policy has
been to require the worksite employer, not the staffing firm, to
maintain illness and injury records of temporary workers supervised
by the worksite employer. The proposed rules continue this policy.
In a special "note" in section 1904.3, "employee" for record
keeping purposes is defined to include temporary workers "when they
are supervised on a day-to-day basis by the employer utilizing their
services." Under this definition, the worksite employer, not the
staffing firm, would be required to maintain records for temporary
employees supplied by a staffing firm, provided they are supervised
by the worksite employer. As stated in the background section of the
proposed rule, "this is consistent with case law and the
interpretation currently used by OSHA" (61 F.R. 4034). NATSS
strongly supports this proposed definition. (Ex. 15: 333)

A number of commenters opposed OSHA's proposed approach on this
issue (see, e.g., Exs. 15: 9, 23, 26, 64, 67, 82, 92, 119, 154, 159,
161, 184, 185, 198, 203, 204, 225, 259, 287, 297, 299, 312, 335, 336,
338, 341, 356, 363, 364, 370, 404, 423, 424, 427, 431, 437, 443).
Several of these commenters thought that including temporary employees
from temporary services, independent contractors and other leased
personnel within the definition of employee would impose new burdens on
employers (see, e.g., Exs. 15: 35, 67, 356, 423, 437). However, the
proposal did not alter the long-standing meanings of the terms
employee, employer or employment relationship. The day-to-day
supervision test for identifying the employer who is responsible for
compliance with Part 1904 is a continuation of OSHA's former policy,
and is consistent with the common law test. The comments indicate that
many employers are not aware that they need to keep records for leased
workers, temporary workers, and workers who are inaccurately labeled
"independent contractors" but are in fact employees. However, these
workers are employees under both the former rule and the final rule.
Incorporating these requirements into the regulatory text can only help
to improve the consistency of the data by clarifying the employer's
responsibilities.

Several commenters erroneously believed that they might need to
keep records for all employees of independent contractors performing
work in their establishment (see, e.g., Exs. 15: 161, 203, 312). The
Battery Council International remarked:

[i]t is unclear how this clarification would apply to employers
in the battery industry who hire independent contractors to perform
construction and other activities on their manufacturing facilities.
Often times, battery manufacturers will provide the contractors with
an orientation to the facility (which includes the facility's safety
and health rules and location of MSDSs) [material safety data
sheets], and monitor the work of the contractor to ensure that work
contracted for has been completed, but do not otherwise supervise
the details, means, methods and processes by which the work is to be
accomplished. In these relationships, the contractors certify to the
battery manufacturers that they comply with all OSHA requirements
including training, which must be completed as part of the work
contract.

If the intent of the proposed clarification is to not require
the reporting of injuries and illnesses to independent contractors
under similar conditions as described above, then BCI supports this
concept and requests further clarification on this issue. BCI will
oppose, however, any attempt by OSHA to require the reporting of
injuries or illnesses that occur to "independent contractors"
where the employer has not otherwise supervised the details, means,
methods and processes by which the work was accomplished (Ex. 15:
161).

The International Dairy Foods Association (IDFA) was concerned that
if a dairy processing facility hired an electrical contractor to
install new lighting and the electrical contractor's employee were
injured while installing the lighting, the dairy might have to record
the incident in its Part 1904 records (Ex. 15: 203).

The 1904 rule does not require an employer to record injuries and
illnesses that occur to workers supervised by independent contractors.
However, the label assigned to a worker is immaterial if it does not
reflect the economic realities of the relationship. For example, an
employment contract that labels a hired worker as an independent
contractor will have no legal significance for Part 1904 purposes if in
fact the hiring employer exercises day-to-day supervision over that
worker, including directing the worker as to the manner in which the
details of the work are to be performed. If the contractor actually
provides day-to-day supervision for the employee, then the contractor
is responsible for compliance with Part 1904 as to that employee. In
the IDFA example, unless the dairy exercised supervisory control over
the time and manner of the electrician's work, the dairy would not be
considered the electrician's employer and would not be required to
record the incident.

Some commenters argued that the injury and illness statistics would
be more accurate or useful if the payroll employer recorded the
injuries and illnesses, regardless of which employer controlled the
work or the hazard (see, e.g., Exs. 15: 9, 26, 92, 161, 198, 259, 287,
297, 299, 333, 341, 356, 364, 443). The Sandoz Corporation stated that
"[t]he control and responsibility for reporting these injuries should
be with the employer, i.e. the establishment that pays the employee.
This simplifies the control and reporting. It also allows a company
that utilizes temporary or contract services to look at the OSHA record
of the supplier as part of the purchasing decision and thus put
pressure on the supplier for better safety performance, thus using
market forces to improve safety" (Ex. 15: 299). The Battery Council
International added "[r]equiring employers to record the injuries and
illnesses of independent contractors under such circumstances is unfair
and will result in the over recording of injuries and illnesses by the
battery industry. This will result in more OSHA inspections on the lead
battery industry, which will in turn impose additional costs and
burdens on BCI members" (Ex. 15: 161). The Fertilizer Institute stated
"[a]dopting compensation as the basis for determining the employer/
employee relationship results in simplification that is not afforded
when one must look at day-to-day supervision" (Ex. 15: 154).

A few commenters recommended that the employer responsible for
workers' compensation insurance also be required to record the injuries
and illnesses (Ex. 15: 204, 225, 336, 364). The American Gas
Association (Ex. 15: 225) stated that OSHA should:

[s]trive to parallel Workers' Compensation law. The employer may
have supervision of some types of temporary workers, e.g., daily
office workers. However, the employer may have no control over a
crew of construction contractors. In this case, the employer does
not supervise the details, means, methods and processes by which the
work accomplished. The definition of employee, along with the note
to the definition proposed by OSHA requires a subjective
determination to be made. 61 Fed. Reg. at 4058. We recommend OSHA
follow a more objective test. The responsibility of reporting
injuries and illnesses should turn on the fact of who provides the
Workers' Compensation insurance, not necessarily daily supervision.
This would then be an objective, rather than subjective test, less
likely open to interpretation and mistakes.

OSHA has rejected the suggestions that either the payroll or
workers' compensation employer keep the OSHA 1904 records. The Agency
believes that in the majority of circumstances the payroll employer
will also be the workers' compensation employer and there is no
difference in the two suggestions. Temporary help services typically
provide the workers' compensation insurance coverage for the employees
they provide to other employers. Therefore, our reasons for rejecting
these suggestions are the same. OSHA agrees that there are good
arguments for both scenarios: 1. Including injuries and illnesses in
the records of the leasing employer (the payroll or workers'
compensation employer and 2. For including these cases in the records
of the controlling employer. Requiring the payroll or workers'
compensation employer to keep the OSHA records would certainly be a
simple and objective method. There would be no doubt about who keeps
the records. However, including the cases in the records of the
temporary help agency erodes the value of the injury and illness
records for statistical purposes, for administering safety and health
programs at individual worksites, and for government inspectors
conducting safety and health inspections or consultations. The benefits
of simplification and clarity do not outweigh the potential damage to
the informational value of the records, for the reasons discussed
below.

First, the employer who controls the workers and the work
environment is in the best position to learn about all the injuries and
illnesses that occur to those workers. Second, when the data are
collected for enforcement and research use and for priority setting,
the injury and illness data are clearly linked to the industrial
setting that gave rise to them. Most important, transferring the
recording/reporting function from the supervising employer to the
leasing firm would undermine rather than facilitate one of the most
important goals of Part 1904 -- to assure that work-related injury and
illness information gets to the employer who can use it to abate work-related hazards. If OSHA were to shift the recordkeeping responsibility
from the controlling employer to the leasing firm, the records would
not be readily available to the employer who can make best use of them.
OSHA would need to require the leasing firm to provide the controlling
employer with copies of the injury and illness logs and other reports
to meet this purpose. This would be both burdensome and duplicative.

Requiring the controlling (host) employer to record injuries and
illnesses for employees that they control has several advantages.
First, it assigns the injuries and illnesses to the individual
workplace with the greatest amount of control over the working
conditions that led to the worker's injury or illness. Although both
the host employer and the payroll employer have safety and health
responsibilities, the host employer generally has more control over the
safety and health conditions where the employee is working. To the
extent that the records connect the occupational injuries and illnesses
to the working conditions in a given workplace, the host employer must
include these cases to provide a full and accurate safety and health
record for that workplace.

If this policy were not in place, industry-wide statistics would be
skewed. Two workplaces with identical numbers of injuries and illnesses
would report different statistics if one relied on temporary help
services to provide workers, while the other did not. Under OSHA's
policy, when records are collected to generate national injury and
illness statistics, the cases are properly assigned to the industry
where they occurred. Assigning these injuries and illnesses to
temporary help services would not accurately reflect the type of
workplace that produced the injuries and illnesses. It would also be
more difficult to compare industries. To illustrate this point,
consider a hypothetical industry that relies on temporary help services
to provide 10% of its labor force. Assuming that the temporary workers
experience workplace injury and illness at the same rate as traditional
employees, the Nation's statistics would underrepresent that industry's
injury and illness numbers by 10%. If another industry only used
temporary help services for 1% of the labor force, its statistics would
be closer to the real number, but comparisons to the 10% industry would
be highly suspect.

The policy also makes it easier to use an industry's data to
measure differences that occur in that industry over time. Over the
last 20 years, the business community has relied increasingly on
workers from temporary help services, employee leasing companies, and
other temporary employees. If an industry sector as a whole changed its
practices to include either more or fewer temporary workers over time,
comparisons of the statistics over several years might show trends in
injury and illness experience that simply reflected changing business
practices rather than real changes in safety and health conditions.

Some commenters objected to this aspect of the proposal because
they thought it would require both the personnel leasing firm and the
host employer to record injuries and illnesses. Double recording would
lead to inaccurate statistics when both employers reported their data
to BLS (see, e.g., Exs. 15: 9, 26, 92, 198, 259, 287, 297, 333, 341,
356, 364, 443). The National Association of Temporary Staffing Services
Stated:

[i]f the exemption is not retained in the case of SIC 7363 [Help
Supply Services] employers, it would be especially important for the
final rules to expressly provide * * * that there is no intent to
impose a dual reporting requirement. At least one state OSH office
already has construed the proposed lifting of the partial exemption
as creating an obligation on the part of staffing firms to maintain
records for all of its employees, including temporary employees
supervised by the worksite employer. This is clearly inconsistent
with the intent of the proposed rule and should be clarified (Ex.
15: 333).

The Society of the Plastics Industry added:

[b]ecause statistics are required to be collected for several
years, it would take a significant effort to contact several
independent companies on a continual basis to obtain such
information. This would only result in a serious duplication of
records, as both the host employer and the temporary leasing
employer record the case. This will increase the recordkeeping
burden for both the employer and those independent companies hired
for a specific job by that employer (Ex. 15: 364).

OSHA agrees with these commenters that there is a potential for
double counting of injuries and illnesses for workers provided by a
personnel supply service. We do not intend to require both employers to
record each injury or illness. To solve this problem, the rule, at
§ 1904.31(b)(4), specifically states that both employers are not
required to record the case, and that the employers may coordinate
their efforts so that each case is recorded only once -- by the employer
who provides day-to-day supervision. When the employers involved choose
to work with each other, or when both employers understand the Part
1904 regulations as to who is required to record the cases and who is
not, there will not be duplicative recording and reporting. This policy
will not completely eliminate double recording of these injuries and
illnesses, but it provides a mechanism for minimizing the error in the
BLS statistics.

OSHA believes that many employers already share information about
these injuries and illnesses to help each other with their own respective
safety and health responsibilities. For example, personnel service
employers need information to process workers' compensation claims and
to determine how well their safety and health efforts are working,
especially those involving training and the use of personal protective
equipment. The host employer needs information on conditions in the
workplace that may have caused the injuries or illnesses.

Many commenters objected to the requirement that the employer who
controls the work environment record injuries and illnesses of
temporary workers because that employer does not have adequate
information to record the cases accurately (see, e.g., Exs. 15: 9, 23,
184, 341, 363, 364, 370). These commenters contended that temporary
workers supplied by personnel agencies may not have been at any given
assignment long enough for the controlling employer to count days away
from work accurately or to make informed judgments about the
recordability of ongoing or recurring cases. The comments also
contended that the controlling employer may have difficulty judging
whether an injury or illness is related to that employer's work
environment, to other places of employment, or is totally non-work
related. These drawbacks in turn affect the recording employer's
ability to certify to the completeness and accuracy of the annual
summary of the Log. U.S. West, Inc. (Ex. 15: 184) remarked:

[e]mployers should not be responsible for recordkeeping
involving independent contractors, workers from temporary agencies,
etc. A major reason for this would be the difficulties presented
when trying to track such individuals for injuries/illnesses that
have long periods of days away from work. In addition, it is often
difficult to assign work relatedness for cases to a specific
employer -- an example would be upper extremity repetitive motion
disorders for an individual from a temporary agency that works for
several different employers in the course of a week or month. To
avoid such problems, recordkeeping should be the responsibility of
the individual's actual employer.

OSHA agrees with these commenters that recording work-related
injuries and illnesses for temporary, leased employees will sometimes
present these difficulties. However, the solution is not, as some
commenters urge, to require the personnel leasing agency to assume
responsibility for Part 1904 recording and reporting. The personnel
leasing firm will not necessarily have better information than the host
employer about the worker's exposures or accidents in previous
assignments, previously recorded injuries or illnesses, or the
aftermath of an injury or illness. And the personnel leasing firm will
certainly have less knowledge of and control over the work environment
that may have caused, contributed to, or significantly aggravated an
injury or illness. As described above, the two employers have shared
responsibilities and may share information when there is a need to do
so.

If Part 1904 records are inaccurate due to lack of reasonably
reliable data about leased employees, there are ways for OSHA to
address the problem. First, the OSH Act does not impose absolutely
strict liability on employers. The controlling employer must make
reasonable efforts to acquire necessary information in order to satisfy
Part 1904, but may be able to show that it is not feasible to comply
with an OSHA recordkeeping requirement. If entries for temporary
workers are deficient in some way, the employer can always defend
against citation by showing that it made the efforts that a reasonable
employer would have made under the particular circumstances to obtain
more complete or accurate data.

A few commenters suggested that OSHA should link the recording
requirement to the duration of time that the contract or temporary
employee works at a specific location (see, e.g., Exs. 15: 185, 259,
341, 364). The National Wholesale Druggists Association (NWDA) believed
that:

[t]here should be a length-of-employment delineation to
determine whether a temporary or contract employee illness or injury
should be included in the OSHA log. OSHA should set a length of time
that the contract or temporary employee must work in a location
before requirements for OSHA log reporting are triggered. By setting
a length of employment standard, OSHA will not only eliminate the
possibility of duplicative reporting of injuries and illnesses but
will also eliminate the reporting of those short-term temporary
employee assignments that may be covered by the temporary agency
(Ex. 15: 185).

The Society of the Plastics Industry (SPI) recommended that the
controlling firm should only keep records for permanently leased
workers, stating "[f]or temporary employees, the employer who pays an
employee (with the presumption that this is for whom they work) should
be required to keep the records. For permanently assigned, leased
employees, SPI agrees that such cases should be recorded by the leasing
employer" (Ex. 15: 364). The Iowa Health Care Association asked
whether a temporary nurse's aide who works in a facility for seven days
to cover a vacationing permanent employee would be considered to be
under the day-to-day supervision of the host facility (Ex. 15: 259).

OSHA has decided not to base recording obligations on the temporary
employee's length of employment. Recording the injuries and illnesses
of some temporary employees and not others would not improve the value
or accuracy of the statistics, and would make the system even more
inconsistent and complex. In OSHA's view, the duration of the
relationship is much less important than the element of control. In the
example of the temporary nurse's aide, for OSHA recordkeeping purposes
the worker would be considered an employee of the facility for the days
he or she works under the day-to-day supervision of the host facility.

Several commenters questioned whether or not temporary workers
would be included in the total number of employees of that employer
(see, e.g., Exs. 15: 67, 356, 375, 437). The number of employees is
used in two separate areas of the recordkeeping system. The number of
employees is used to determine the exemption for smaller employers, and
is entered on the annual summary of occupational injuries and
illnesses. The Small Business Administration expressed concern over
whether counting these workers as employees would affect the exemption
for smaller employers, stating "[t]he definition of "employee" goes
beyond the statutory intent * * * Small businesses would not only have
new obligations for coverage, but this methodology for counting
employees would impact the opportunity for an exemption under this
standard" (Exs. 15: 67, 437). The American Petroleum Institute (API)
was concerned about how the employee count affects the way that the
host employer completes the annual summary, particularly the entries
for hours worked by all employees and the average number of employees:

[u]sing the OSHA-specified approach for determining the number
of employees and hours worked, particularly for temporary employees
and/or smaller establishments, is not often feasible. Assumption (1)
[that the employer already has this data] is not true for temporary
employees. Their hours worked are maintained by their contract
employers. Host employers have dollar costs paid to each contractor
employer. Therefore, getting employee counts and hours worked for
temporaries requires making assumptions and estimating (Ex. 15:
375).

Because OSHA is using the common law concepts to determine which
workers are to be included in the records, a worker who is covered in
terms of recording an injury or illness is also covered for counting
purposes and for the annual summary. If a given worker is an employee
under the common law test, he or she is an employee for all OSHA
recordkeeping purposes. Therefore, an employer must consider all of its
employees when determining its eligibility for the small employer
exemption, and must provide reasonable estimates for hours worked and
average employment on the annual summary. OSHA has included
instructions on the back of the annual summary to help with these
calculations.

The Texas Chemical Council argued that supervising employers should
not have to record injuries or illnesses of agency-supplied workers
unless the supervising employer has authority to hold these workers
accountable for safety performance (Ex. 15: 159). According to this
commenter, most temporary agencies limit the contracting employer to
following the agencies' policies for corrective action for unacceptable
performance. OSHA would simply point out that this is a matter within
the contract arrangements between the two employers, and that OSHA
intervention in this area is not necessary or appropriate. In any
event, we believe that this should not determine who records
occupational injuries and illnesses.

The Phibro-Tech company asked "[i]f the facility is now
responsible for tracking these injuries on their Form 300, will this
affect the Worker's Compensation liability?" (Ex. 15: 35). Tracking
injuries and illnesses for OSHA purposes does not affect an employer's
workers' compensation liability. An employer's liability for workers'
compensation is a separate matter that is covered by state law.
Employers who maintain workers' compensation coverage will be
responsible for injuries and illnesses regardless of which employer
records them for OSHA purposes.

Bell Atlantic Network Services asked "[a]re contract employee OSHA
recordable injury/illness incidents to be recorded on the same OSHA 300
log as employer's full-time employees? Are they to be identified as
"Contract/Temporary" employees on the OSHA 300 Log, i.e., under the
column E -- Job Title?" (Ex. 15: 218). OSHA's view is that a given
establishment should have one OSHA Log and only one Log. Injuries and
illnesses for all the employees at the establishment are entered into
that record to create a single summary at the end of the year. OSHA
does not require temporary workers or any other types of workers to be
identified with special titles in the job title column, but also does
not prohibit the practice. This column is used to list the occupation
of the injured or ill worker, such as laborer, machine operator, or
nursing aide. However, OSHA does encourage employers to analyze their
injury and illness data to improve safety and health at the
establishment. In some cases, identifying temporary or contract workers
may help an employer to manage safety and health more effectively. Thus
an employer may supplement the OSHA Log to identify temporary or
contract workers, although the rule does not require it.

OSHA received two suggestions that would provide an OSHA inspector
with injury and illness data for temporary workers without putting
their injuries on the host employer's OSHA 300 Log. The National Grain
and Feed Association, Grain Elevator and Processing Society, and
National Oilseed Processors Association jointly recommended:

[e]mployers with employees who work under contract at a site
other than the employer's should be required to provide a copy of
the appropriate first report of injury or OSHA 301 to the site
controlling employer. The site controlling employer can then
maintain a file of Form 301's to facilitate OSHA's evaluation of
workplace hazards (Ex. 15: 119).

The Douglas Battery Manufacturing (Ex. 15: 82) company suggested
the following alternative:

[a]n option that would allow an employer of temporary workers to
determine the incident rate of the temporaries, would be to require
the temporary agency/ contractor to forward a copy of its OSHA log
for workers at a particular facility, to that facility by February
of the next calendar year. The names and other personal identifiers
of the temporary/contract workers could be removed prior to
submittal but the data would be available on site for agency
inspection purposes.

OSHA believes that neither of these alternatives would be an
acceptable substitute for completing the 300 Log and 301 form for
injured workers. The information would not be entered into the annual
summary, so the establishment's statistics would not be complete. While
these options would create a method (although a cumbersome method) for
providing the information to a government inspector, the data would not
be collected for statistical purposes.

Some commenters asked OSHA about how they should deal with a
variety of other types of workers. The American Ambulance Association
suggested that OSHA "[s]pecifically exclude from the definition of
employee, students who are unpaid by the company/institution which is
providing a clinical or practice setting" (Ex. 15: 226). The Maine
Department of Labor (Ex. 15: 41) asked the following question:

[q]uestions about how to report people such as Interns, Aspire
(welfare) program participants, prison release workers and
volunteers are now being asked. A clear definition needs to be
established to account for all kinds of employees. Our Public Sector
law requires us to count all people who are permitted to work. Maybe
you don't want that inclusive a definition, but it is something to
consider. We had to come up with a specific definition of volunteers
to exclude sporadic volunteers (essentially those not working at a
specific place at a specific time on a regular basis). With some
workplaces utilizing volunteers and with welfare reform changes
expected, you may want to prepare for these questions now.

These workers should be evaluated just as any other worker. If a
student or intern is working as an unpaid volunteer, he or she would
not be an employee under the OSH Act and an injury or illness of that
employee would not be entered into the Part 1904 records. If the worker
is receiving compensation for services, and meets the common law test
discussed earlier, then there is an employer-employee relationship for
the purposes of OSHA recordkeeping. The employer in that relationship
must evaluate any injury or illness at the establishment and enter it
into the records if it meets the recording criteria.

Section 1904.32 Annual Summary

At the end of each calendar year, section 1904.32 of the final rule
requires each covered employer to review his or her OSHA 300 Log for
completeness and accuracy and to prepare an Annual Summary of the OSHA
300 Log using the form OSHA 300-A, Summary of Work-Related Injuries and
Illnesses, or an equivalent form. The summary must be certified for
accuracy and completeness and be posted in the workplace by February 1
of the year following the year covered by the summary. The summary must
remain posted until April 30 of the year in which it was posted.

Preparing the Annual Summary requires four steps: reviewing the
OSHA 300 Log, computing and entering the summary information on the
Form 300-A, certification, and posting. First, the employer must review
the Log as extensively as necessary to make sure it is accurate and
complete. Second, the employer must total the columns on the Log;
transfer them to the summary form; and enter the calendar year covered,
the name of the employer, the name and address of the establishment,
the average number of employees on the establishment's payroll for the
calendar year, and the total hours worked by the covered employees. If
there were no recordable cases at the establishment for the year covered,
the summary must nevertheless be completed by entering zeros in the total
for each column of the OSHA 300 Log. If a form other than the OSHA 300-A
is used, as permitted by paragraph 1904.29(b)(4), the alternate form must
contain the same information as the OSHA 300-A form and include identical
statements concerning employee access to the Log and Summary and employer
penalties for falsifying the document as are found on the OSHA 300-A
form.

Third, the employer must certify to the accuracy and completeness
of the Log and Summary, using a two-step process. The person or persons
who supervise the preparation and maintenance of the Log and Summary
(usually the person who keeps the OSHA records) must sign the
certification statement on the form, based on their direct knowledge of
the data on which it was based. Then, to ensure greater awareness and
accountability of the recordkeeping process, a company executive, who
may be an owner, a corporate officer, the highest ranking official
working at the establishment, or that person's immediate supervisor,
must also sign the form to certify to its accuracy and completeness.
Certification of the summary attests that the individual making the
certification has a reasonable belief, derived from his or her
knowledge of the process by which the information in the Log was
reported and recorded, that the Log and summary are "true" and
"complete."

Fourth, the Summary must be posted no later than February 1 of the
year following the year covered in the Summary and remain posted until
April 30 of that year in a conspicuous place where notices are
customarily posted. The employer must ensure that the Summary is not
defaced or altered during the 3 month posting period.

Changes from the former rule. Although the final rule's
requirements for preparing the Annual Summary are generally similar to
those of the former rule, the final rule incorporates four important
changes that OSHA believes will strengthen the recordkeeping process by
ensuring greater completeness and accuracy of the Log and Summary,
providing employers and employees with better information to understand
and evaluate the injury and illness data on the Annual Summary, and
facilitating greater employer and employee awareness of the
recordkeeping process.

1. Company Executive Certification of the Annual Summary. The final
rule carries forward the proposed rule's requirement for certification
by a higher ranking company official, with minor revision. OSHA
concludes that the company executive certification process will ensure
greater completeness and accuracy of the Summary by raising
accountability for OSHA recordkeeping to a higher managerial level than
existed under the former rule. OSHA believes that senior management
accountability is essential if the Log and Annual Summary are to be
accurate and complete. The integrity of the OSHA recordkeeping system,
which is relied on by the BLS for national injury and illness
statistics, by OSHA and employers to understand hazards in the
workplaces, by employees to assist in the identification and control of
the hazards identified, and by safety and health professionals
everywhere to analyze trends, identify emerging hazards, and develop
solutions, is essential to these objectives. Because OSHA cannot
oversee the preparation of the Log and Summary at each establishment
and cannot audit more than a small sample of all covered employers'
records, this goal is accomplished by requiring employers or company
executives to certify the accuracy and completeness of the Log and
Summary.